game preserve by rog phillips _the hunters were necessary, of course--but there was the other side of the picture too._ [transcriber's note: this etext was produced from worlds of if science fiction, october 1957. extensive research did not uncover any evidence that the u.s. copyright on this publication was renewed.] _the first of the_ morons, _as they were popularly called, though they were totally lacking in intelligence, were born in 1971, eleven years after the mutual retaliation phase of the big war-that-no-one-started, the majority of them near the big, bombed-out cities. by 1973, with the aid of the electron microscope, the scientists had learned all about it. parents and offspring were sterilized and the offspring placed in state institutions. by 1983 there were too many of them. a new solution to the impossible situation was tried, large isolated areas in the south where the climate was mild were made into preserves for them. in the wilds the_ morons _banded into small herds that showed no inclination to roam. by 1985 no more of the_ morons _were being born, thanks to the sterilization of all parents carrying the contaminated gene. it was thought the problem was permanently solved, through perfect cooperation between science, the government, and the public. if the contamination had not been weeded out of the race one fourth of every generation for all the future would have been without any intelligence whatever._ _but here and there had been natural births, unattended by a doctor; and parental love coupled with fear of being sterilized and thus denied further parenthood had brought into existence a few thousand unsterilized_ morons, _hidden away in attic rooms or in basements. and to these parents the preserves offered the logical solution too--drive into the nearest preserve and turn the child loose with its kind. thus, a new generation came into being in the scattered herds, and by 2010 a.d. a new problem had come into being. thanks to impurities in the_ moron _strain or to wandering renegades--or both--a few normally intelligent offspring were appearing in the herds. there was danger of these recontaminating the race, if they left the herds, learned to speak, wear clothes...._ _in 2010 the government attempted a mass sterilization of the herds but the herds were too wild by now, and the males too dangerous, so the sterilization program was abandoned and a new plan substituted. the government hunters came into being, small patrol groups whose job was to pick off the renegades and any members of the herds that were intelligent._ * * * * * "hi-hi-hi!" big one shouted, and heaved erect with the front end of it. "hi-hi-hi," fat one and the dozen others echoed more mildly, lifting wherever they could get a hold on it. it was lifted and borne forward in a half crouching trot. "hi-hi hi-hi-hihihi," elf chanted, running and skipping alongside the panting men and their massive burden. it was carried forward through the lush grass for perhaps fifty feet. "ah-ah-ah," big one sighed loudly, slowly letting the front end of it down until it dug into the soft black soil. "ahhh," fat one and the others sighed, letting go and standing up, stretching aching back muscles, rubbing cramped hands. "ah-ah-ah-ah-ah-ah," elf sang, running around and in between the resting men. he came too close to big one and was sent sprawling by a quick, good humored push. everyone laughed, big one laughing the loudest. then big one lifted elf to his feet and patted him on the back affectionately, a broad grin forming a toothy gap at the top of his bushy black beard. elf answered the grin with one of his own, and at that moment his ever present yearning to grow up to be the biggest and the strongest like big one flowed through him with new strength. abruptly big one leaped to the front end of it, shouting "hi-hi-hi!" "hi-hi-hi," the others echoed, scrambling to their places. once again it was borne forward for fifty feet--and again and again, across the broad meadowland. a vast matting of blackberry brambles came into view off to one side. big one veered his course toward it. the going was uphill now, so the forward surges shortened to forty feet, then thirty. by the time they reached the blackberries they were wet and glossy with sweat. it was a healthy patch, loaded with large ripe berries. the men ate hungrily at first, then more leisurely, pointing to one another's stained beards and laughing. as they denuded one area they leaped to it, carried it another ten feet, and started stripping another section, never getting more than a few feet from it. elf picked his blackberries with first one then another of the men. when his hunger was satisfied he became mischievous, picking a handful of berries and squashing them against the back or the chest of the nearest man and running away, laughing. it was dangerous sport, he knew, because if one of them caught him he would be tossed into the brambles. eventually they all had their fill, and thanks to elf looked as though they were oozing blackberry juice from every pore. the sun was in its mid-afternoon position. in the distance a line of white-barked trees could be seen--evidence of a stream. "hi-hi-hi!" big one shouted. the journey toward the trees began. it was mostly downhill, so the forward spurts were often as much as a hundred feet. before they could hear the water they could smell it. they grunted their delight at the smell, a rich fish odor betokening plenty of food. intermingled with this odor was the spicy scent of eucalyptus. they pushed forward with renewed zeal so that the sweat ran down their skins, dissolving the berry juices and making rivulets that looked like purple blood. when less than a hundred yards from the stream, which was still hidden beyond the tall grasses and the trees lining its bank, they heard the sound of voices, high pitched--women's voices. they became uneasy and nervous. their surges forward shortened to ten feet, their rest periods became longer, they searched worriedly for signs of motion through the trees. they changed their course to arrive a hundred yards downstream from the source of the women's voices. soon they reached the edge of the tree belt. it was more difficult to carry it through the scatterings of bushes. too, they would get part way through the trees and run into trees too close together to get it past them, and have to back out and try another place. it took almost two hours to work through the trees to the bank of the stream. only elf recognized the place they finally broke through as the place they had left more than two days before. in that respect he knew he was different, not only from big one and other grownups, but also all other elfs except one, a girl elf. he had known it as long as he could remember. he had learned it from many little things. for example, he had recognized the place when they reached it. big one and the others never remembered anything for long. in getting it through the trees they blundered as they always had, and got through by trial and error with no memory of past blunderings. elf was different in another way, too. he could make more sounds than the others. sometimes he would keep a little it with him until it gave him a feeling of security almost as strong as the big it, then wander off alone with it and play with making sounds. "bz-bz. walla-walla-walla-rue-rue-la-lo-hi. da!" and all kinds of sounds. it excited him to be able to make different sounds and put them together so that they pleased his hearing, but such sounds made the others avoid him and look at him from a safe distance, with worried expressions, so he had learned not to make _different_ sounds within earshot of the others. * * * * * the women and elfs were upstream a hundred yards, where they always remained. from the way they were milling around and acting alarmed it was evident to elf they could no more remember the men having been here a few days before than the men could remember it themselves. it would be two or three days before they slowly lost their fear of one another. it would be the women and their elfs who would cautiously approach, holding their portable its clutched for security, until, finally losing all fear, they would join into one big group for a while. big one and the others carried it right to the water's edge so they could get into the water without ever being far from it. they shivered and shouted excitedly as they bathed. fat one screamed with delight as he held a squirming fish up for the others to see. he bit into it with strong white teeth, water dripping from his heavy brown beard. renewed hunger possessed him. he gobbled the fish and began searching for another. he always caught two fish for any other man's one, which was why he was fat. elf himself caught a fish. after eating it he lay on the grassy bank looking up at the white billowing clouds in the blue sky. the sun was now near the horizon, half hidden behind a cloud, sending divergent ramps of light downward. the clouds on the western horizon were slowly taking on color until red, orange, and green separated into definite areas. the soft murmur of the stream formed a lazy background to the excited voices of the men. from upstream, faintly, drifted the woman and elf sounds. here, close to the ground, the rich earthy smell was stronger than that of the stream. after a time a slight breeze sprang up, bringing with it other odors, that of distant pines, the pungent eucalyptus, a musky animal scent. big one and the others were out of the water, finally. half asleep, elf watched them move it up to dry ground. as though that was what the sun had been waiting for, it sank rapidly below the horizon. the clouds where the sun had been seemed now to blaze for a time with a smoldering redness that cooled to black. the stars came out, one by one. a multitude of snorings erupted into the night. elf crept among the sleeping forms until he found big one, and settled down for the night, his head against big one's chest, his right hand resting against the cool smooth metal of it. * * * * * elf awoke with the bright morning sun directly in his eyes. big one was gone, already wading in the stream after fish. some of the others were with him. a few were still sleeping. elf leaped to his feet, paused to stretch elaborately, then splashed into the stream. as soon as he caught a fish he climbed out onto the bank and ate it. then he turned to his search for a little it. there were many lying around, all exactly alike. he studied several, not touching some, touching and even nudging others. since they all looked alike it was more a matter of _feel_ than any real difference that he looked for. one and only one seemed to be the it. elf returned his attention to it several times. finally he picked it up and carried it over to the big it, and hid it underneath. big one, with shouts of sheer exuberance, climbed up onto the bank dripping water. he grinned at elf. elf looked in the direction of the women and other elfs. some of them were wandering in his direction, each carrying an it of some sort, many of them similar to the one he had chosen. in sudden alarm at the thought that someone might steal his new it, elf rescued it from its hiding place. he tried to hide it behind him when any of the men looked his way. they scorned an individual it and, as men, preferred an it too heavy for one person. as the day advanced, women and elfs approached nearer, pretending to be unaware at times that the men were here, at other times openly fleeing back, overcome by panic. the men never went farther than twenty feet from the big it. but as the women came closer the men grew surly toward one another. by noon two of them were trying to pick a fight with anyone who would stand up to them. elf clutched his little it closely and moved cautiously downstream until he was twenty feet from the big it. tentatively he went another few feet--farther than any of the men dared go from the big it. at first he felt secure, then panic overcame him and he ran back, dropping the little it. he touched the big it until the panic was gone. after a while he went to the little it and picked it up. he walked around, carrying it, until he felt secure with it again. finally he went downstream again, twenty feet, twenty-five feet, thirty.... he felt panic finally, but not overwhelmingly. when it became almost unendurable he calmly turned around and walked back. confidence came to him. an hour later he went downstream until he was out of sight of the big it and the men. security seemed to flow warmly from the little it. excitement possessed elf. he ran here and there, clutching it closely so as not to drop it and lose it. he felt _free_. "bdlboo," he said aloud, experimentally. he liked the sounds. "bdlboo--bdlboo--bdlboo." he saw a berry bush ahead and ran to it to munch on the delicious fruit. "riddle piddle biddle," he said. it sounded nice. he ran on, and after a time he found a soft grassy spot and stretched out on his back, holding it carelessly in one hand. he looked up and up, at a layer of clouds going in one direction and another layer above it going in another direction. suddenly he heard voices. at first he thought the wind must have changed so that it was carrying the voices of the men to him. he lay there listening. slowly he realized these voices were different. they were putting sounds together like those he made himself. a sense of wonder possessed him. how could there be anyone besides himself who could do that? unafraid, yet filled with caution, he clutched it closely to his chest and stole in the direction of the sounds. after going a hundred yards he saw signs of movement through the trees. he dropped to the ground and lay still for a moment, then gained courage to rise cautiously, ready to run. stooping low, he stole forward until he could see several moving figures. darting from tree to tree he moved closer to them, listening with greater excitement than he had ever known to the smoothly flowing variety of beautiful sounds they were making. this was something new, a sort of game they must be playing. one voice would make a string of sounds then stop, another would make a string of different sounds and stop, a third would take it up. they were good at it, too. but the closer he got to them the more puzzled he became. they were shaped somewhat like people, they carried its, they had hands and faces like people. that's as far as the similarity went. their feet were solid, their arms, legs, and body were not skin at all but strangely colored and unliving in appearance. their faces were smooth like women's, their hair short like babies', their voices deep like men's. and the its they carried were unlike any elf had ever seen. not only that, each of them carried more than one. _that_ was an _idea_! elf became so excited he almost forgot to keep hidden. if you had more than one it, then if something happened to one you would still feel secure! he resisted the urge to return to the stream and search for another little it to give him extra security. if he did that he might never again find these creatures that were so like men and yet so different. so instead, he filed the idea away to use at the earliest opportunity and followed the strange creatures, keeping well hidden from them. * * * * * soon elf could hear the shouts of the men in the distance. from the behavior of the creatures ahead, they had heard those shouts too. they changed their direction so as to reach the stream a hundred yards or more downstream at about the spot where elf had left. they made no voice sounds now that elf could hear. they clutched their strangely shaped long its before them tensely as though feeling greater security that way, their heads turning this way and that as they searched for any movement ahead. they moved purposefully. an overwhelming sense of kinship brought tears to elf's eyes. these creatures were _his kind_. their differences from him were physical and therefore superficial, and even if those differences were greater it wouldn't have mattered. he wanted, suddenly, to run to them. but the thought of it sent fear through him. also they might run in panic from him if he suddenly revealed himself. it would have to be a mutual approach, he felt. he was used to seeing them now. in due time he would reveal himself for a brief moment to them. later he would stay in the open and watch them, making no move to approach until they got used to him being around. it might take days, but eventually, he felt sure, he could join them without causing them to panic. after all, there had been the time when he absented himself from the men for three whole days and when he returned they had forgotten him, and his sudden appearance in their midst had sent even big one into spasms of fear. unable to flee from the security of the big it, and unable to bear his presence among them without being used to him, they had all fallen on the ground in a fit. he had had to retreat and wait until they recovered. then, slowly, he had let them get used to his being in sight before approaching again. it had taken two full days to get to the point where they would accept him once more. that experience, elf felt, would be valuable to remember now. he wouldn't want to plunge these creatures into fits or see them scatter and run away. also, he was too afraid right now to reveal himself even though every atom of his being called for their companionship. suddenly he made another important discovery. some of the its these creatures carried had something like pliable vines attached to them so they could be hung about the neck! the thought was so staggering that elf stopped and examined his it to see if that could be done to it. it was twice as long as his hand and round one way, tapering to a small end that opened to the hollow inside. it was too smooth to hold with a pliable vine unless--he visualized pliable vines woven together to hold it. he wasn't sure how it could be done, but maybe it could. he set the idea aside for the future and caught up with the creatures again, looking at them with a new emotion, awe. the ideas he got just from watching them were so staggering he was getting dizzy! another new thought hit him. he rejected it at once as being too fantastic. it returned. leaves are thin and pliable and can be wrapped around small objects like pebbles. could it be that these creatures were really men of some sort, with bodies like men, covered with something thin like leaves are thin? it was a new and dizzy height in portable securities, and hardly likely. no. he rejected the idea with finality and turned his mind to other things. he knew now where they could reach the stream. he decided to circle them and get ahead of them. for the next few minutes this occupied his full attention, leaving no room for crazy thoughts. he reached the stream and hid behind some bushes where he would have a quick line of retreat if necessary. he clutched it tightly and waited. in a few moments he saw the first of the creatures emerge a hundred feet away. the others soon joined the first. elf stole forward from concealment to concealment until he was only fifteen feet from them. his heart was pounding with a mixture of fear and excitement. his knuckles were white from clutching it. the creatures were still carrying on their game of making sounds, but now in an amazing new way that made them barely audible. elf listened to the incredibly varied sounds, enraptured. "this colony seems to have remained pure." "you never can tell." "no, you never can tell. get out the binoculars and look, joe." "not just yet, harold. i'm looking to see if i can spot one whose behavior shows intelligence." elf ached to imitate some of the beautiful combinations of sounds. he wanted to experiment and see if he could make the softly muted voices. he had an idea how it might be done, not make a noise in your throat but breathe out and form the sounds with your mouth just like you were uttering them aloud. one of the creatures fumbled at an it hanging around his neck. the top of it hinged back. he reached in and brought out a gleaming it and held it so that it covered his eyes. he was facing toward the men upstream and stood up slowly. "see something, joe?" suddenly elf was afraid. was this some kind of magic? he had often puzzled over the problem of whether things were there when he didn't look at them. he had experimented, closing his eyes then opening them suddenly to see if things were still there, and they always were; but maybe this was magic to make the men not be there. elf waited, watching upstream, but big one and the others did not vanish. the one called joe chuckled. "the toy the adult males have would be a museum piece if it were intact. a 1960 ford, i think. only one wheel on it, right front." elf's attention jerked back. one of the creatures was reaching over his shoulder, lifting on the large it fastened there. the top of the it pulled back. he reached inside, bringing out something that made elf almost exclaim aloud. it was shaped exactly like the little it elf was carrying, but it glistened in the sunlight and its interior was filled with a richly brown fluid. "anyone else want a coke?" "this used to be a picnic area," the one called joe said, not taking his eyes from the binoculars. "i can see a lot of pop bottles lying around in the general area of that wreck of a ford." while elf watched, breathless, the creature reached inside the skin of his hip and brought out a very small it and did something to the small end of the hollow it. putting the very small it back under the skin of his hip, he put the hollow it to his lips and tilted it. elf watched the brown liquid drain out. here was magic. such an it--the very one he carried--could be filled with water from the stream and carried around to drink any time! when the it held no more liquid the creature dropped it to the ground. elf could not take his eyes from it. he wanted it more than he had ever wanted anything. they might forget it. sometimes the women dropped their its and forgot them, picking up another one instead, and these creatures had beardless faces like women. besides, each of them carried so many its that they would feel just as secure without this one. so many its! one of the creatures held a flat white it in one hand and a very slim it shaped like a straight section of a bush stem, pointed at one end, with which he scratched on the white it at times, leaving black designs. "there're fourteen males," the one called joe whispered. the other wrote it down. the way these creatures did things, elf decided, was very similar to the way big one and the other men went at moving the big it. they were very much like men in their actions, these creatures. "eighty-five or six females." "see any signs of intelligent action yet?" "no. a couple of the males are fighting. probably going to be a mating free-for-all tomorrow or next day. there's one! just a minute, i want to make sure. it's a little girl, maybe eight or nine years old. good forehead. her eyes definitely lack that large marble-like quality of the sub-moron parent species. she's intelligent all right. she's drawing something in the sand with a stick. give me your rifle, bill, it's got a better telescope sight on it than mine, and i don't want her to suffer." that little it, abandoned on the ground. elf wanted it. one of the creatures would be sure to pick it up. elf worried. he would never get it then. if only the creatures would go, or not notice him. if only-the creature with the thing over his eyes put it back where he had gotten it out of the thing hanging from his shoulder. he had taken one of the long slim things from another of the creatures and placed the thick end against his shoulder, the small end pointed upstream. the others were standing, their backs to elf, all of them looking upstream. if they would remain that way, maybe he could dart out and get the little it. in another moment they might lose interest in whatever they were watching. elf darted out from his concealment and grabbed the it off the ground, and in the same instant an ear shattering sound erupted from the long slim thing against the creature's shoulder. * * * * * "got her!" the creature said. paralyzed with fright, elf stood motionless. one of the creatures started to turn his way. at the last instant elf darted back to his place of concealment. his heart was pounding so loudly he felt sure they would hear it. "you sure, joe?" "right through the head. she never knew what happened." elf held the new it close to him, ready to run if he were discovered. he didn't dare look at it yet. it wouldn't notice if he just held it and felt it without looking at it. it was cold at first, colder than the water in the stream. slowly it warmed. he dared to steal a quick glance at it. it gleamed at him as though possessed of inner life. a new feeling of security grew within him, greater than he had ever known. the other it, the one half filled with dried mud, and deeply scratched from the violent rush of water over it when the stream went over its banks, lay forgotten at his feet. "well, that finishes the survey trip for this time." elf paid little attention to the voice whispers now, too wrapped up in his new feelings. "yes, and quite a haul. twenty-two colonies--three more than ten years ago. fourteen of them uncontaminated, seven with only one or two intelligent offspring to kill, only one colony so contaminated we had to wipe it out altogether. and one renegade." "the renegades are growing scarcer every time. another ten or twenty years and they'll be extinct." "then there won't be any more intelligent offspring in these colonies." "let's get going. it'll be dark in another hour or so." the creatures were hiding some of their its under their skin, in their carrying cases. there was a feeling about them of departure. elf waited until they were on the move, back the way they had come, then he followed at a safe distance. he debated whether to show himself now or wait. the sun was going down in the sky now. it wouldn't be long until it went down for the night. should he wait until in the morning to let them get their first glimpse of him? he smiled to himself. he had plenty of time. tomorrow and tomorrow. he would never return to big one and the other men. men or creatures, he would join with these new and wonderful creatures. they were _his kind_. he thought of the girl elf. they were her kind, too. if he could only get her to come with him. on sudden impulse he decided to try. these creatures were going back the same way they had come. if he ran, and if she came right with him, they could catch up with the creatures before they went so far they would lose them. he turned back, going carefully until he could no longer see the creatures, then he ran. he headed directly toward the place where the women and elfs stayed. they would not be so easily alarmed as the men because there were so many of them they couldn't remember one another, and one more or less of the elfs went unnoticed. * * * * * when he reached the clearing he slowed to a walk, looking for her. ordinarily he didn't have to look much. she would see him and come to him, smiling in recognition of the fact that he was the only one like her. he became a little angry. was she hiding? then he saw her. he went to her. she was on her stomach, motionless as though asleep, but something was different. there was a hole in one side of her head, and on the opposite side it was torn open, red and grayish white, with--he knelt down and touched her. she had the same inert feel to her that others had had who never again moved. he studied her head curiously. he had never seen anything like this. he shook her. she remained limp. he sighed. he knew what would happen now. it was already happening. the odor was very faint yet, but she would not move again, and day after day the odor would get stronger. no one liked it. he would have to hurry or he would lose the creatures. he turned and ran, never looking back. once he started to cry, then stopped in surprise. why had he been crying, he wondered. he hadn't hurt himself. he caught up with the creatures. they were hurrying now, their long slender its balanced on one shoulder, the big end resting in the palm of the hand. they no longer moved cautiously. shortly it was new country. elf had never been this far from the stream. big one more or less led the men, and always more or less followed the same route in cross country trips. the creatures didn't spend hours stumbling along impossible paths. they looked ahead of them and selected a way, and took it. also they didn't have a heavy it to transport, fifty feet at a time. elf began to sense they had a destination in mind. probably the place they lived. * * * * * just ahead was a steep bank, higher than a man, running in a long line. the creatures climbed the bank and vanished on the other side. cautiously elf followed them, heading toward a large stone with it qualities at the top of the bank from whose concealment he could see where they had gone without being seen. he reached it and cautiously peeked around it. just below him were the creatures, but what amazed elf was the sight of the big it. it was very much like the big it the men had, except that there were differences in shape, and instead of one round thing at one corner, it had one at each corner and rested on them so that it was held off the ground. it glistened instead of being dull. it had a strange odor that was quite strong. the creatures were putting some of their its into it, two of them had actually climbed into it--something neither elf nor the men had ever dared to do with their own big it. elf took his eyes off of it for a moment to marvel at the ground. it seemed made of stone, but such stone as he had never before seen. it was an even width with edges going in straight lines that paralleled the long narrow hill on which he stood, and on the other side was a similar hill, extending as far as the eye could see. he returned his attention to the creatures and their big it. the creatures had all climbed into it now. possibly they were settling down for the night, though it was still early for that.... no matter. there was plenty of time. tomorrow and tomorrow. elf would show himself in the morning, then run away. he would come back again after a while and show himself a little longer, giving them time to get used to him so they wouldn't panic. they were playing their game of making voice sounds to one another again. it seemed their major preoccupation. elf thought how much fun it would be to be one of them, making voice sounds to his heart's content. "i don't see why the government doesn't wipe out the whole lot," one of them was saying. "it's hopeless to keep them alive. feeble-mindedness is dominant in them. they can't be absorbed into the race again, and any intelligent offspring they get from mating with a renegade would start a long line of descendents, at least one fourth of whom would be mindless idiots." "well," another of them said, "it's one of those things where there is no answer. wipe them out, and next year it would be all the blond haired people to be wiped out to keep the race of dark haired people pure, or something. probably in another hundred years nature will take care of the problem by wiping them out for us. meanwhile we game wardens must make the rounds every two years and weed out any of them we can find that have intelligence." he looked up the embankment but did not notice elf's head, concealed partially by the grass around the concrete marker. "it's an easy job. any of them we missed seeing this time, we'll probably get next time. in the six or eight visits we make before the intelligent ones can become adults and mate we always find them." "what i hate is when they see us, those intelligent ones," a third voice said. "when they walk right up to us and want to be friends with us it's too much like plain murder, except that they can't talk, and only make moronic sounds like 'bdl-bdl-bdl.' even so, it gets me when we kill them." the others laughed. suddenly elf heard a new sound from the big it. it was not a voice sound, or if it was it was one that elf felt he could not possibly match exactly. it was a growling, "rrrrrrrrrrrr." suddenly it was replaced by still a different sound, a "p-p-p-p-p" going very rapidly. perhaps it was the way these creatures snored. it was not unpleasant. elf cocked his head to one side, listening to the sound, smiling. how exciting it would be when he could join with these creatures! he wanted to so much. the big it began to move. in the first brief second elf could not believe his senses. how could it move without being carried? but it was moving, and the creatures didn't seem to be aware of it! or perhaps they were too overcome by fear to leap out! already the big it was moving faster than a walk, and was moving faster with every heartbeat. how could they remain unaware of it and not leap to safety? belatedly elf abandoned caution and leaped down the embankment to the flat ribbon of rock, shouting. but already the big it was over a hundred yards away, and moving faster now than birds in flight! he shouted, but the creatures didn't hear him--or perhaps they were so overcome with fright that they were frozen. yes, that must be it. elf ran after the big it. if he could only catch up with it he would gladly join the creatures in their fate. better to die with them than to lose them! he ran and ran, refusing to believe he could never overtake the big it, even when it disappeared from view, going faster than the wind. he ran and ran until his legs could lift no more. blinded by tears, he tripped and sprawled full length on the wide ribbon of stone. his nose bled from hitting the hard surface. his knees were scraped and bleeding. he was unaware of this. he was aware only that the creatures were gone, to what unimaginable fate he could not guess, but lost to him, perhaps forever. sobs welled up within him, spilled out, shaking his small naked body. he cried as he hadn't cried since he was a baby. and the empty coca cola bottle clutched forgotten in his hand glistened with the rays of the setting sun.... the origin of the family private property and the state by frederick engels _translated by ernest untermann_ [illustration: logo] chicago charles h. kerr & company 1908 copyright, 1902 by charles h. kerr & company table of contents. page. translator's preface 5 author's prefaces 9-12 prehistoric stages 27 the family 35 the iroquois gens 102 the grecian gens 120 origin of the attic state 131 gens and state in rome 145 the gens among celts and germans 158 the rise of the state among germans 176 translator's preface. "an eternal being created human society as it is to-day, and submission to 'superiors' and 'authority' is imposed on the 'lower' classes by divine will." this suggestion, coming from pulpit, platform and press, has hypnotized the minds of men and proves to be one of the strongest pillars of exploitation. scientific investigation has revealed long ago that human society is not cast in a stereotyped mould. as organic life on earth assumes different shapes, the result of a succession of chemical changes, so the group life of human beings develops different social institutions as a result of increasing control over environment, especially of production of food, clothing and shelter. such is the message which the works of men like bachofen, morgan, marx, darwin, and others, brought to the human race. but this message never reached the great mass of humanity. in the united states the names of these men are practically unknown. their books are either out of print, as is the case with the fundamental works of morgan, or they are not translated into english. only a few of them are accessible to a few individuals on the dusty shelves of some public libraries. their message is dangerous to the existing order, and it will not do to give it publicity at a time when further intellectual progress of large bodies of men means the doom of the ruling class. the capitalist system has progressed so far, that all farther progress must bring danger to it and to those who are supreme through it. but the forces, which have brought about the present social order, continue their work regardless of the wishes of a few exploiters. a comprehensive work summarizing our present knowledge of the development of social institutions is, therefore, a timely contribution to socialist propaganda. in order to meet the requirements of socialists, such a summary must be written by a socialist. all the scientists who devoted themselves to the study of primeval society belonged to the privileged classes, and even the most radical of them, lewis morgan, was prevented by his environment from pointing out the one fact, the recognition of which distinguishes the socialist position from all others--the existence of a class struggle. the strongest allusion to this fact is found in the following passage of "ancient society": "property and office were the foundations upon which aristocracy planted itself. whether this principle shall live or die has been one of the great problems with which modern society has been engaged.... as a question between equal rights and unequal rights, between equal laws and unequal laws, between the rights of wealth, of rank and of official position, and the power of justice and intelligence, there can be little doubt of the ultimate result" (page 551). yet morgan held that "several thousand years have passed away without the overthrow of the privileged classes, excepting in the united states." but in the days of the trusts, of government by injunction, of sets of 400 with all the arrogance and exclusiveness of european nobility, of aristocratic branches of the daughters of the revolution, and other gifts of capitalist development, the modern american workingman will hardly share morgan's optimistic view that there are no privileged classes in the united states. it must be admitted, however, that to this day morgan's work is the most fundamental and exhaustive of any written on the subject of ancient social development. westermarck's "history of human marriage" treats the question mainly from the standpoint of ethnology and natural history. as a scientific treatise it is entirely inadequate, being simply a compilation of data from all parts of the world, arranged without the understanding of gentile organizations or of the materialistic conception of history, and used for wild speculations. kovalevsky's argument turns on the proposition that the patriarchal household is a typical stage of society, intermediate between the matriarchal and monogamic family. none of these men could discuss the matter from the proletarian point of view. for in order to do this, it is necessary to descend from the hills of class assumption into the valley of proletarian class-consciousness. this consciousness and the socialist mind are born together. the key to the philosophy of capitalism is the philosophy of socialism. with the rays of this searchlight, engels exposed the pious "deceivers," property and the state, and their "lofty" ideal, covetousness. and the monogamic family, so far from being a divinely instituted "union of souls," is seen to be the product of a series of material and, in the last analysis, of the most sordid motives. but the ethics of property are worthy of a system of production that, in its final stage, shuts the overwhelming mass of longing humanity out from the happiness of home and family life, from all evolution to a higher individuality, and even drives progress back and forces millions of human beings into irrevocable degeneration. the desire for a higher life cannot awake in a man, until he is thoroughly convinced that his present life is ugly, low, and capable of improvement by himself. the present little volume is especially adapted to assist the exploited of both sexes in recognizing the actual causes which brought about their present condition. by opening the eyes of the deluded throng and reducing the vaporings of their ignorant or selfish would-be leaders in politics and education to sober reality, it will show the way out of the darkness and mazes of slavish traditions into the light and freedom of a fuller life on earth. these are the reasons for introducing this little volume to english speaking readers. without any further apology, we leave them to its perusal and to their own conclusions. ernest untermann. chicago, august, 1902. author's preface to the first edition, 1884. the following chapters are, in a certain sense, executing a bequest. it was no less a man than karl marx who had reserved to himself the privilege of displaying the results of morgan's investigations in connection with his own materialistic conception of history--which i might call ours within certain limits. he wished thus to elucidate the full meaning of this conception. for in america, morgan had, in a manner, discovered anew the materialistic conception of history, originated by marx forty years ago. in comparing barbarism and civilization, he had arrived, in the main, at the same results as marx. and just as "capital" was zealously plagiarized and persistently passed over in silence by the professional economists in germany, so morgan's "ancient society"[1] was treated by the spokesmen of "prehistoric" science in england. my work can offer only a meager substitute for that which my departed friend was not destined to accomplish. but in his copious extracts from morgan, i have critical notes which i herewith reproduce as fully as feasible. according to the materialistic conception, the decisive element of history is pre-eminently the production and reproduction of life and its material requirements. this implies, on the one hand, the production of the means of existence (food, clothing, shelter and the necessary tools); on the other hand, the generation of children, the propagation of the species. the social institutions, under which the people of a certain historical period and of a certain country are living, are dependent on these two forms of production; partly on the development of labor, partly on that of the family. the less labor is developed, and the less abundant the quantity of its production and, therefore, the wealth of society, the more society is seen to be under the domination of sexual ties. however, under this formation based on sexual ties, the productivity of labor is developed more and more. at the same time, private property and exchange, distinctions of wealth, exploitation of the labor power of others and, by this agency, the foundation of class antagonism, are formed. these new elements of society strive in the course of time to adapt the old state of society to the new conditions, until the impossibility of harmonizing these two at last leads to a complete revolution. the old form of society founded on sexual relations is abolished in the clash with the recently developed social classes. a new society steps into being, crystallized into the state. the units of the latter are no longer sexual, but local groups; a society in which family relations are entirely subordinated to property relations, thereby freely developing those class antagonisms and class struggles that make up the contents of all written history up to the present time. morgan deserves great credit for rediscovering and re-establishing in its main outlines this foundation of our written history, and of finding in the sexual organizations of the north american indians the key that opens all the unfathomable riddles of most ancient greek, roman and german history. his book is not the work of a short day. for more than forty years he grappled with the subject, until he mastered it fully. therefore his work is one of the few epochal publications of our time. in the following demonstrations, the reader will, on the whole, easily distinguish what originated with morgan and what was added by myself. in the historical sections on greece and rome, i have not limited myself to morgan's material, but have added as much as i could supply. the sections on celts and germans essentially belong to me. morgan had only sources of minor quality at his disposal, and for german conditions--aside from tacitus--only the worthless, unbridled falsifications of freeman. the economic deductions, sufficient for morgan's purpose, but wholly inadequate for mine, were treated anew by myself. and lastly i am, of course, responsible for all final conclusions, unless morgan is expressly quoted. frederick engels. author's preface to the fourth edition, 1891. the first large editions of this work have been out of print for nearly six months, and the publisher has for some time requested of me the arrangement of a new edition. urgent duties have hitherto prevented me. seven years have passed, since the first edition made its appearance; during this time, the study of primeval forms of the family has made considerable progress. hence it became necessary to apply diligently the improving and supplementing hand, more especially, as the proposed stereotyping of the present text will make further changes impossible for some time. consequently, i have subjected the whole text to a thorough revision and made a number of additions which, i hope, will give due recognition to the present stage of scientific progress. furthermore, i give in the course of this preface a short synopsis of the history of the family as treated by various writers from bachofen to morgan. i am doing this mainly because the english prehistoric school, tinged with chauvinism, is continually doing its utmost to kill by its silence the revolution in primeval conceptions effected by morgan's discoveries. at the same time this school is not at all backward in appropriating to its own use the results of morgan's study. in certain other circles also this english example is unhappily followed rather extensively. my work has been translated into different languages. first into italian; l'origine della famiglia, della proprietá privata e dello stato, versione riveduta dall' autore, di pasquale martignetti; benevento, 1885. then into roumanian: origina familei, proprietatei private si a statului, traducere de ivan nadejde, in the jassy periodical "contemporanul," september, 1885, to may, 1886. furthermore into danish: familjens, privatejendommens og statens oprindelse, dansk, af forfatteren gennemgaaet udgave, besörget af gerson trier, kjoebenhavn, 1888. a french translation by henri ravé, founded on the present german edition, is under the press. up to the beginning of the sixties, a history of the family cannot be spoken of. this branch of historical science was then entirely under the influence of the decalogue. the patriarchal form of the family, described more exhaustively by moses than by anybody else, was not only, without further comment, considered as the most ancient, but also as identical with the family of our times. no historical development of the family was even recognized. at best it was admitted that a period of sexual license might have existed in primeval times. to be sure, aside from monogamy, oriental polygamy and indo-tibethan polyandry were known; but these three forms could not be arranged in any historical order and stood side by side without any connection. that some nations of ancient history and some savage tribes of the present day did not trace their descent to the father, but to the mother, hence considered the female lineage as alone valid; that many nations of our time prohibit intermarrying inside of certain large groups, the extent of which was not yet ascertained and that this custom is found in all parts of the globe--these facts were known, indeed, and more examples were continually collected. but nobody knew how to make use of them. even in e. b. taylor's "researches into the early history of mankind," etc. (1865), they are only mentioned as "queer customs" together with the usage of some savage tribes to prohibit the touching of burning wood with iron, tools, and similar religious absurdities. this history of the family dates from 1861, the year of the publication of bachofen's "mutterrecht" (maternal law). here the author makes the following propositions: 1. that in the beginning people lived in unrestricted sexual intercourse, which he dubs, not very felicitously, hetaerism. 2. that such an intercourse excludes any absolutely certain means of determining parentage; that consequently descent could only be traced by the female line in compliance with maternal law--and that this was universally practiced by all the nations of antiquity. 3. that consequently women as mothers, being the only well known parents of younger generations, received a high tribute of respect and deference, amounting to a complete women's rule (gynaicocracy), according to bachofen's idea. 4. that the transition to monogamy, reserving a certain woman exclusively to one man, implied the violation of a primeval religious law (i. e., practically a violation of the customary right of all other men to the same woman), which violation had to be atoned for or its permission purchased by the surrender of the women to the public for a limited time. bachofen finds the proofs of these propositions in numerous quotations from ancient classics, collected with unusual diligence. the transition from "hetaerism" to monogamy and from maternal to paternal law is accomplished according to him--especially by the greeks--through the evolution of religious ideas. new gods, the representatives of the new ideas, are added to the traditional group of gods, the representatives of old ideas; the latter are forced to the background more and more by the former. according to bachofen, therefore, it is not the development of the actual conditions of life that has effected the historical changes in the relative social positions of man and wife, but the religious reflection of these conditions in the minds of men. hence bachofen represents the oresteia of aeschylos as the dramatic description of the fight between the vanishing maternal and the paternal law, rising and victorious during the time of the heroes. klytaemnestra has killed her husband agamemnon on his return from the trojan war for the sake of her lover aegisthos; but orestes, her son by agamemnon, avenges the death of his father by killing his mother. therefore he is persecuted by the erinyes, the demonic protectors of maternal law, according to which the murder of a mother is the most horrible, inexpiable crime. but apollo, who has instigated orestes to this act by his oracle, and athene, who is invoked as arbitrator--the two deities representing the new paternal order of things--protect him. athene gives a hearing to both parties. the whole question is summarized in the ensuing debate between orestes and the erinyes. orestes claims that klytemnaestra has committed a twofold crime: by killing her husband she has killed his father. why do the erinyes persecute him and not her who is far more guilty? the reply is striking: "she was not related by blood to the man whom she slew." the murder of a man not consanguineous, even though he be the husband of the murderess, is expiable, does not concern the erinyes; it is only their duty to prosecute the murder of consanguineous relatives. according to maternal law, therefore, the murder of a mother is the most heinous and inexpiable crime. now apollo speaks in defense of orestes. athene then calls on the areopagites--the jurors of athens--to vote; the votes are even for acquittal and for condemnation. thereupon athene as president of the jury casts her vote in favor of orestes and acquits him. paternal law has gained a victory over maternal law, the deities of the "younger generation," as the erinyes call them, vanquish the latter. these are finally persuaded to accept a new office under the new order of things. this new, but decidedly accurate interpretation of the oresteia is one of the most beautiful and best passages in the whole book, but it proves at the same time that bachofen himself believes as much in the erinyes, in apollo and in athene, as aeschylos did in his day. he really believes, that they performed the miracle of securing the downfall of maternal law through paternal law during the time of the greek heroes. that a similar conception, representing religion as the main lever of the world's history, must finally lead to sheer mysticism, is evident. therefore it is a troublesome and not always profitable task to work your way through the big volume of bachofen. still, all this does not curtail the value of his fundamental work. he was the first to replace the assumption of an unknown primeval condition of licentious sexual intercourse by the demonstration that ancient classical literature points out a multitude of traces proving the actual existence among greeks and asiatics of other sexual relations before monogamy. these relations not only permitted a man to have intercourse with several women, but also left a woman free to have sexual intercourse with several men without violating good morals. this custom did not disappear without leaving as a survival the form of a general surrender for a limited time by which women had to purchase the right of monogamy. hence descent could originally only be traced by the female line, from mother to mother. the sole legality of the female line was preserved far into the time of monogamy with assured, or at least acknowledged, paternity. consequently, the original position of the mothers as the sole absolutely certain parents of their children secured for them and for all other women a higher social level than they have ever enjoyed since. although bachofen, biased by his mystic conceptions, did not formulate these propositions so clearly, still he proved their correctness. this was equivalent to a complete revolution in 1861. bachofen's big volume was written in german, i. e., in the language of a nation that cared less than any other of its time for the history of the present family. therefore he remained unknown. the man next succeeding him in the same field made his appearance in 1865 without having ever heard of bachofen. this successor was j. f. mclennan, the direct opposite of his predecessor. instead of the talented mystic, we have here the dry jurist; in place of the rank growth of poetical imagination, we find the plausible combinations of the pleading lawyer. mclennan finds among many savage, barbarian and even civilized people of ancient and modern times a type of marriage forcing the bride-groom, alone or in co-operation with his friends, to go through the form of a mock forcible abduction of the bride. this must needs be a survival of an earlier custom when men of one tribe actually secured their wives by forcible abduction from another tribe. how did this "robber marriage" originate? as long as the men could find women enough in their own tribe, there was no occasion for robbing. it so happens that we frequently find certain groups among undeveloped nations (which in 1865 were often considered identical with the tribes themselves), inside of which intermarrying was prohibited. in consequence the men (or women) of a certain group were forced to choose their wives (or husbands) outside of their group. other tribes again observe the custom of forcing their men to choose their women inside of their own group only. mclennan calls the first exogamous, the second endogamous, and construes forthwith a rigid contrast between exogamous and endogamous "tribes." and though his own investigation of exogamy makes it painfully obvious that this contrast in many, if not in most or even in all cases, exists in his own imagination only, he nevertheless makes it the basis of his entire theory. according to the latter, exogamous tribes can choose their women only from other tribes. and as in conformity with their savage state a condition of continual warfare existed among such tribes, women could only be secured by abduction. mclennan further asks: whence this custom of exogamy? the idea of consanguinity and rape could not have anything to do with it, since these conceptions were developed much later. but it was a widely spread custom among savages to kill female children immediately after their birth. this produced a surplus of males in such a tribe which naturally resulted in the condition where several men had one woman--polyandry. the next consequence was that the mother of a child could be ascertained, but not its father; hence: descent only traced by the female line and exclusion of male lineage--maternal law. and a second consequence of the scarcity of women in a certain tribe--a scarcity that was somewhat mitigated, but not relieved by polyandry--was precisely the forcible abduction of women from other tribes. "as exogamy and polyandry are referable to one and the same cause--a want of balance between the sexes--we are forced to regard all the exogamous races as having originally been polyandrous.... therefore we must hold it to be beyond dispute that among exogamous races the first system of kinship was that which recognized blood-ties through mothers only."[2] it is the merit of mclennan to have pointed out the general extent and the great importance of what he calls exogamy. however, he has by no means discovered the fact of exogamous groups; neither did he understand their presence. aside from earlier scattered notes of many observers--from which mclennan quoted--latham had accurately and correctly described this institution among the indian magars[3] and stated that it was widespread and practiced in all parts of the globe. mclennan himself quotes this passage. as early as 1847, our friend morgan had also pointed out and correctly described the same custom in his letters on the iroquois (in the american review) and in 1851 in "the league of the iroquois." we shall see, how the lawyer's instinct of mclennan has introduced more disorder into this subject than the mystic imagination of bachofen did into the field of maternal law. it must be said to mclennan's credit that he recognized the custom of tracing decent by maternal law as primeval, although bachofen has anticipated him in this respect. mclennan has admitted this later on. but here again he is not clear on the subject. he always speaks of "kinship through females only" and uses this expression, correctly applicable to former stages, in connection with later stages of development, when descent and heredity were still exclusively traced along female lines, but at the same time kinship on the male side began to be recognized and expressed. it is the narrow-mindedness of the jurist, establishing a fixed legal expression and employing it incessantly to denote conditions to which it should no longer be applied. in spite of its plausibility, mclennan's theory did not seem too well founded even in the eyes of its author. at least he finds it remarkable himself "that the form of capture is now most distinctly marked and impressive just among those races which have male kinship."[4] and again: "it is a curious fact that nowhere now, that we are aware of, is infanticide a system where exogamy and the earliest form of kinship co-exists."[5] both these facts directly disprove his method of explanation, and he can only meet them with new and still more complicated hypotheses. in spite of this, his theory found great approval and favor in england. here mclennan was generally considered as the founder of the history of the family and as the first authority on this subject. his contrast of exogamous and endogamous "tribes" remained the recognized foundation of the customary views, however much single exceptions and modifications were admitted. this antithesis became the eye-flap that rendered impossible any free view of the field under investigation and, therefore, any decided progress. it is our duty to confront this overrating of mclennan, practised in england and copied elsewhere, with the fact that he has done more harm with his ill-conceived contrast of exogamous and endogamous tribes than he has done good by his investigations. moreover, in the course of time more and more facts became known that did not fit into his neat frame. mclennan knew only three forms of marriage: polygamy, polyandry and monogamy. but once attention had been directed to this point, then more and more proofs were found that among undeveloped nations there were connubial forms in which a group of men possessed a group of women. lubbock in his "origin of civilization" (1870) recognized this "communal marriage" as a historical fact. immediately after him, in 1871, morgan appeared with fresh and, in many respects, conclusive material. he had convinced himself that the peculiar system of kinship in vogue among the iroquois was common to all the aborigines of the united states, and practised all over the continent, although it was in direct contradiction with all the degrees of relation arising from the connubial system in practice there. he prevailed on the federal government to collect information on the systems of kinship of other nations by the help of question blanks and tables drawn up by himself. the answers brought the following results: 1. the kinship system of the american indians is also in vogue in asia, and in a somewhat modified form among numerous tribes of africa and australia. 2. this system finds a complete explanation in a certain form of communal marriage now in process of decline in hawaii and some australian islands. 3. by the side of this marital form, there is in practice on the same islands a system of kinship only explicable by a still more primeval and now extinct form of communal marriage. the collected data and the conclusions of morgan were published in his "systems of consanguinity and affinity," 1871, and discussion transferred to a far more extensive field. taking his departure from the system of affinity he reconstructed the corresponding forms of the family, thereby opening a new road to scientific investigation and extending the retrospective view into prehistoric periods of human life. once this view gained recognition, then the frail structure of mclennan, would vanish into thin air. mclennan defended his theory in the new edition of "primitive marriage" (studies in ancient history, 1875). while he himself most artificially combines into a history of the family a number of hypotheses, he not only demands proofs from lubbock and morgan for every one of their propositions, but insists on proofs of such indisputable validity as is solely recognized in a scotch court. and this is done by the same man who unhesitatingly concludes that the following people practiced polyandry: the germans, on account of the intimate relation between uncle and nephew (mother's brother and sister's son); the britons, because cesar reports that the britons have ten to twelve women in common; barbarians, because all other reports of the old writers on community of women are misinterpreted by him! one is reminded of a prosecuting attorney who takes all possible liberty in making up his case, but who demands the most formal and legally valid proof for every word of the lawyer for the defense. he asserts that communal marriage is purely the outgrowth of imagination, and in so doing falls far behind bachofen. he represents morgan's systems of affinity as mere codes of conventional politeness, proven by the fact that indians address also strangers, white people, as brother or father. this is like asserting that the terms father, mother, brother, sister are simply meaningless forms of address, because catholic priests and abbesses are also addressed as father and mother, and monks and nuns, or even free-masons and members of english professional clubs in solemn session, as brother and sister. in short, mclennan's defense was extremely weak. one point still remained that had not been attacked. the contrast of exogamous and endogamous tribes, on which his whole system was founded, was not only left unchallenged, but was even generally regarded as the pivotal point of the entire history of the family. it was admitted that mclennan's attempt to explain this contrast was insufficient and in contradiction with the facts enumerated by himself. but the contrast itself, the existence of two diametrically opposed forms of independent and absolute groups, one of them marrying the women of its own group, the other strictly forbidding this habit, was considered irrefutable gospel. compare e. g. giraud-teulon's "origines de la famille" (1874) and even lubbock's "origin of civilization" (4th edition, 1882). at this point morgan's main work, "ancient society" (1877), inserts its lever. it is this work on which the present volume is based. here we find clearly demonstrated what was only dimly perceived by morgan in 1871. there is no antithesis between endogamy and exogamy; no exogamous "tribes" have been found up to the present time. but at the time when communal marriage still existed--and in all probability it once existed everywhere--a tribe was subdivided into a number of groups--"gentes"--consanguineous on the mother's side, within which intermarrying was strictly forbidden. the men of a certain "gens," therefore, could choose their wives within the tribe, and did so as a rule, but had to choose them outside of the "gens." and while thus the "gens" was strictly exogamous, the tribe comprising an aggregate of "gentes" was equally endogamous. this fact gave the final blow to mclennan's artificial structure. but morgan did not rest here. the "gens" of the american indians furthermore assisted him in gaining another important step in the field under investigation. he found that this "gens," organized in conformity with maternal law, was the original form out of which later on the "gens" by paternal law developed, such as we find it among the civilized nations of antiquity. the greek and roman "gens," an unsolved riddle to all historians up to our time, found its explanation in the indian "gens." a new foundation was discovered for the entire primeval history. the repeated discovery that the original maternal "gens" was a preliminary stage of the paternal "gens" of civilized nations has the same signification for primeval history that darwin's theory of evolution had for biology and marx's theory of surplus value for political economy. morgan was thereby enabled to sketch the outline of a history of the family, showing in bold strokes at least the classic stages of development, so far as the available material will at present permit such a thing. it is clearly obvious that this marks a new epoch in the treatment of primeval history. the maternal "gens" has become the pivot on which this whole science revolves. since its discovery we know in what direction to continue our researches, what to investigate and how to arrange the results of our studies. in consequence, progress in this field is now much more rapid than before the publication of morgan's book. the discoveries of morgan are now universally recognized, or rather appropriated, even by the archaeologists of england. but hardly one of them openly admits that we owe this revolution of thought to morgan. his book is ignored in england as much as possible, and he himself is dismissed with condescending praise for the excellence of his former works. the details of his discussion are diligently criticised, but his really great discoveries are covered up obstinately. the original edition of "ancient society" is out of print; there is no paying market for a work of this kind in america; in england, it appears, the book was systematically suppressed, and the only edition of this epochal work still circulating in the market is--the german translation. whence this reserve? we can hardly refrain from calling it a conspiracy to kill by silence, especially in view of the numerous meaningless and polite quotations and of other manifestations of fellowship in which the writings of our recognized archaeologists abound. is it because morgan is an american, and because it is rather hard on the english archaeologists to be dependent on two talented foreigners like bachofen and morgan for the outlines determining the arrangement and grouping of their material, in spite of all praiseworthy diligence in accumulating material. they could have borne with the german, but an american? in face of an american, every englishman becomes patriotic. i have seen amusing illustrations of this fact in the united states. moreover, it must be remembered that mclennan was, so to say, the official founder and leader of the english prehistoric school. it was almost a requirement of good prehistoric manners to refer in terms of highest admiration to his artificial construction of history leading from infanticide through polyandry and abduction to maternal law. the least doubt in the strictly independent existence of exogamous and endogamous tribes was considered a frivolous sacrilege. according to this view, morgan, in reducing all these sacred dogmas to thin air, committed an act of wanton destruction. and worse still, his mere manner of reducing them sufficed to show their instability, so that the admirers of mclennan, who hitherto had been stumbling about helplessly between exogamy and endogamy, were almost forced to slap their foreheads and exclaim: "how silly of us, not to have found that out long ago!" just as if morgan had not committed crimes enough against the official archaeologists to justify them in discarding all fair methods and assuming an attitude of cool neglect, he persisted in filling their cup to overflowing. not only does he criticise civilization, the society of production for profit, the fundamental form of human society, in a manner savoring of fourier, but he also speaks of a future reorganization of society in language that karl marx might have used. consequently, he receives his just deserts, when mclennan indignantly charges him with a profound antipathy against historical methods, and when professor giraud-teulon of geneva endorses the same view in 1884. for was not the same professor giraud-teulon still wandering about aimlessly in the maze of mclennan's exogamy in 1874 (origines de la famille)? and was it not morgan who finally had to set him free? it is not necessary to dwell in this preface on the other forms of progress which primeval history owes to morgan. reference to them will be found in the course of my work. during the fourteen years that have elapsed since the publication of his main work, the material contributing to the history of primeval society has been considerably enriched. anthropologists, travelers and professional historians were joined by comparative jurists who added new matter and opened up new points of view. here and there, some special hypothesis of morgan has been shaken or even become obsolete. but in no instance has the new material led to a weakening of his leading propositions. the order he established in primeval history still holds good in its main outlines to this day. we may even say that this order receives recognition in the exact degree, in which the authorship of this great progress is concealed. london, june 16th, 1891. frederick engels. footnotes: [1] ancient society or researches in the lines of human progress from savagery, through barbarism, to civilization. by lewis h. morgan. henry holt & co. 1877. the book, printed in america, was singularly difficult to obtain in london. the author died a few years ago. [2] mclennan, studies in ancient history, 1886. primitive marriage, p. 124. [3] latham, descriptive ethnology, 1859. [4] mclennan, studies in ancient history, 1886. primitive marriage, p. 140. [5] ibidem, p. 146. the origin of the family chapter i. prehistoric stages. morgan was the first to make an attempt at introducing a logical order into the history of primeval society. until considerably more material is obtained, no further changes will be necessary and his arrangement will surely remain in force. of the three main epochs--savagery, barbarism and civilization--naturally only the first two and the transition to the third required his attention. he subdivided each of these into a lower, middle and higher stage, according to the progress in the production of the means of sustenance. his reason for doing so is that the degree of human supremacy over nature is conditioned on the ability to produce the necessities of life. for of all living beings, man alone has acquired an almost unlimited control over food production. all great epochs of human progress, according to morgan, coincide more or less directly with times of greater abundance in the means that sustain life. the evolution of the family proceeds in the same measure without, however, offering equally convenient marks for sub-division. i. savagery. 1. lower stage. infancy of the human race. human beings still dwelt in their original habitation, in tropical or subtropical forests. they lived at least part of the time in trees, for only in this way they could escape the attacks of large beasts of prey and survive. fruit, nuts, and roots served as food. the formation of articulated speech is the principal result of this period. not a single one of all the nations that have become known in historic times dates back to this primeval stage. although the latter may extend over thousands of years, we have no means of proving its existence by direct evidence. but once the descent of man from the animal kingdom is acknowledged, the acceptance of this stage of transition becomes inevitable. 2. middle stage: commencing with the utilization of fish (including crabs, mollusks and other aquatic animals) and the use of fire. both these things belong together, because fish becomes thoroughly palatable by the help of fire only. with this new kind of food, human beings became completely independent of climate and locality. following the course of rivers and coastlines, they could spread over the greater part of the earth even in the savage state. the so-called palaeolithic implements of the early stone age, made of rough, unsharpened stones, belong almost entirely to this period. their wide distribution over all the continents testifies to the extent of these wanderings. the unceasing bent for discovery, together with the possession of fire gained by friction, created new products in the lately occupied regions. such were farinaceous roots and tubers, baked in hot ashes or in baking pits (ground ovens). when the first weapons, club and spear, were invented, venison was occasionally added to the bill of fare. nations subsisting exclusively by hunting, such as we sometimes find mentioned in books, have never existed; for the proceeds of hunting are too uncertain. in consequence of continued precariousness of the sources of sustenance, cannibalism seems to arise at this stage. it continues in force for a long while. even in our day, australians and polynesians still remain in this middle stage of savagery. 3. higher stage: coming with the invention of bow and arrow, this stage makes venison a regular part of daily fare and hunting a normal occupation. bow, arrow and cord represent a rather complicated instrument, the invention of which presupposes a long and accumulated experience and increased mental ability; incidentally they are conditioned on the acquaintance with a number of other inventions. in comparing the nations that are familiar with the use of bow and arrow, but not yet with the art of pottery (from which morgan dates the transition to barbarism), we find among them the beginnings of village settlements, a control of food production, wooden vessels and utensils, weaving of bast fibre by hand (without a loom), baskets made of bast or reeds, and sharpened (neolithic) stone implements. generally fire and the stone ax have also furnished the dugout and, here and there, timbers and boards for house-building. all these improvements are found, e. g., among the american indians of the northwest, who use bow and arrows, but know nothing as yet about pottery. bow and arrows were for the stage of savagery what the iron sword was for barbarism and the fire-arm for civilization; the weapon of supremacy. ii. barbarism. 1. lower stage. dates from the introduction of the art of pottery. the latter is traceable in many cases, and probably attributable in all cases, to the custom of covering wooden or plaited vessels with clay in order to render them fire-proof. it did not take long to find out that moulded clay served the same purpose without a lining of other material. hitherto we could consider the course of evolution as being equally characteristic, in a general way, for all the nations of a certain period, without reference to locality. but with the beginning of barbarism, we reach a stage where the difference in the natural resources of the two great bodies of land makes itself felt. the salient features of this stage of barbarism is the taming and raising of animals and the cultivation of plants. now the eastern body of land, the so-called old world, contained nearly all the tamable animals and all the cultivable species of grain but one; while the western continent, america, possessed only one tamable mammal, the llama (even this only in a certain part of the south), and only one, although the best, species of grain: the corn. from now on, these different conditions of nature lead the population of each hemisphere along divergent roads, and the landmarks on the boundaries of the various stages differ in both cases. 2. middle stage. commencing in the east with the domestication of animals, in the west with the cultivation and irrigation of foodplants; also with the use of adobes (bricks baked in the sun) and stones for buildings. we begin in the west, because there this stage was never outgrown up to the time of the conquest by europeans. at the time of their discovery, the indians in the lower stage of barbarism (all those living east of the mississippi) carried on cultivation on a small scale in gardens. corn, and perhaps also pumpkins, melons and other garden truck were raised. a very essential part of their sustenance was produced in this manner. they lived in wooden houses, in fortified villages. the tribes of the northwest, especially those of the region along the columbia river, were still in the higher stage of savagery, ignorant of pottery and of any cultivation of plants whatever. but the so-called pueblo indians in new mexico, the mexicans, central-americans and peruvians, were in the middle-stage of barbarism. they lived in fortlike houses of adobe or stone, cultivated corn and other plants suitable to various conditions of localities and climate in artificially irrigated gardens that represented the main source of nourishment, and even kept a few tamed animals--the mexicans the turkey and other birds, the peruvians the llama. furthermore they were familiar with the use of metals--iron excepted, and for this reason they could not get along yet without stone weapons and stone implements. the conquest by the spaniards cut short all further independent development. in the east, the middle stage of barbarism began with the taming of milk and meat producing animals, while the cultivation of plants seems to have remained unknown far into this period. it appears that the taming and raising of animals and the formation of large herds gave rise to the separation of aryans and semites from the rest of the barbarians. names of animals are still common to the languages of european and asian aryans, while this is almost never the case with the names of cultivated plants. in suitable localities, the formation of herds led to a nomadic life, as with the semites in the grassy plains of the euphrates and tigris, the aryans in the plains of india, of the oxus, jaxartes, don and dnieper. along the borders of such pasture lands, the taming of animals must have been accomplished first. but later generations conceived the mistaken idea that the nomadic tribes had their origin in regions supposed to be the cradle of humanity, while in reality their savage ancestors and even people in the lower stage of barbarism would have found these regions almost unfit for habitation. on the other hand, once these barbarians of the middle stage were accustomed to nomadic life, nothing could have induced them to return voluntarily from the grassy river plains to the forests that had been the home of their ancestors. even when semites and aryans were forced further to the north and west, it was impossible for them to occupy the forest regions of western asia and europe, until they were enabled by agriculture to feed their animals on this less favorable soil and especially to maintain them during the winter. it is more than probable that the cultivation of grain was due primarily to the demand for stock feed, and became an important factor of human sustenance at a later period. the superior development of aryans and semites is, perhaps, attributable to the copious meat and milk diet of both races, more especially to the favorable influence of such food on the growth of children. as a matter of fact, the pueblo indians of new mexico who live on an almost purely vegetarian diet, have a smaller brain than the indians in the lower stage of barbarism who eat more meat and fish. at any rate, cannibalism gradually disappears at this stage and is maintained only as a religious observance or, what is here nearly identical, as a magic remedy.[6] 3. higher stage. beginning with the melting of iron ore and merging into civilization by the invention of letter script and its utilization for writing records. this stage which is passed independently only on the eastern hemisphere, is richer in improvements of production than all preceding stages together. it is the stage of the greek heroes, the italian tribes shortly before the foundation of rome, the germans of tacitus, the norsemen of the viking age. we are here confronted for the first time with the iron ploughshare drawn by animals, rendering possible agriculture on a large scale, in fields, and hence a practically unlimited increase in the production of food for the time being. the next consequence is the clearing of forests and their transformation into arable land and meadows--which process, however, could not be continued on a larger scale without the help of the iron ax and the iron spade. naturally, these improvements brought a more rapid increase of population and a concentration of numbers into a small area. before the time of field cultivation a combination of half a million of people under one central management could have been possible only under exceptionally favorable conditions; most likely this was never the case. the greatest attainments of the higher stage of barbarism are presented in homer's poems, especially in the iliad. improved iron tools; the bellows; the hand-mill; the potter's wheel; the preparation of oil and wine; a well developed fashioning of metals verging on artisanship; the wagon and chariot; ship-building with beams and boards; the beginning of artistic architecture; towns surrounded by walls with turrets and battlements; the homeric epos and the entire mythology--these are the principal bequests transmitted by the greeks from barbarism to civilization. in comparing these attainments with the description given by cesar or even tacitus of germans, who were in the beginning of the same stage of evolution which the greeks were preparing to leave for a higher one, we perceive the wealth of productive development comprised in the higher stage of barbarism. the sketch which i have here produced after morgan of the evolution of the human race through savagery and barbarism to the beginning of civilization is even now rich in new outlines. more still, these outlines are incontrovertible, because traced directly from production. nevertheless, this sketch will appear faint and meagre in comparison to the panorama unrolled to our view at the end of our pilgrimage. not until then will it be possible to show in their true light both the transition from barbarianism to civilization and the striking contrast between them. for the present we can summarize morgan's arrangement in the following manner: savagery--time of predominating appropriation of finished natural products; human ingenuity invents mainly tools useful in assisting this appropriation. barbarism--time of acquiring the knowledge of cattle raising, of agriculture and of new methods for increasing the productivity of nature by human agency. civilization: time of learning a wider utilization, of natural products, of manufacturing and of art. footnote: [6] translator's note. advocates of vegetarianism may, of course, challenge this statement and show that all the testimony of anthropology is not in favor of the meat-eaters. it must also be admitted that diet is not the only essential factor in environment which influences the development of races. and there is no conclusive evidence to prove the absolute superiority of one diet over another. neither have we any proofs that cannibalism ever was in general practice. it rather seems to have been confined to limited groups of people in especially ill-favored localities or to times of great scarcity of food. hence we can neither refer to cannibalism as a typical stage in human history, nor are we obliged to accept the vegetarian hypothesis of a transition from a meat diet to a plant diet as a condition sine qua non of higher human development. chapter ii. the family. morgan, who spent the greater part of his life among the iroquois in the state of new york and who had been adopted into one of their tribes, the senecas, found among them a system of relationship that was in contradiction with their actual family relations. among them existed what morgan terms the syndyasmian or pairing family, a monogamous state easily dissolved by either side. the offspring of such a couple was identified and acknowledged by all the world. there could be no doubt to whom to apply the terms father, mother, son, daughter, brother, sister. but the actual use of these words was not in keeping with their fundamental meaning. for the iroquois addresses as sons and daughters not only his own children, but also those of his brothers; and he is called father by all of them. but the children of his sisters he calls nephews and nieces, and they call him uncle. vice versa, an iroquois woman calls her own children as well as those of her sisters sons and daughters and is addressed as mother by them. but the children of her brothers are called nephews and nieces, and they call her aunt. in the same way, the children of brothers call one another brothers and sisters, and so do the children of sisters. but the children of a sister call those of her brother cousins, and vice versa. and these are not simply meaningless terms, but expressions of actually existing conceptions of proximity and remoteness, equality or inequality of consanguinity. these conceptions serve as the fundament of a perfectly elaborated system of relationship, capable of expressing several hundred different relations of a single individual. more still, this system is not only fully accepted by all american indians--no exception has been found so far--but it is also in use with hardly any modifications among the original inhabitants of india, among the dravidian tribes of the dekan and the gaura tribes of hindostan. the terms of relationship used by the tamils of southern india and by the seneca-iroquois of new york state are to this day identical for more than two hundred different family relations. and among these east indian tribes also, as among all american indians, the relations arising out of the prevailing form of the family are not in keeping with the system of kinship. how can this be explained? in view of the important role played by kinship in the social order of all the savage and barbarian races, the significance of such a widespread system cannot be obliterated by phrases. a system that is generally accepted in america, that also exists in asia among people of entirely different races, that is frequently found in a more or less modified form all over africa and australia, such a system requires a historical explanation and cannot be talked down, as was attempted, e. g., by mclennan. the terms father, child, brother, sister are more than mere honorary titles; they carry in their wake certain well-defined and very serious obligations, the aggregate of which comprises a very essential part of the social constitution of those nations. and the explanation was found. in the sandwich islands (hawaii) there existed up to the first half of the nineteenth century a family form producing just such fathers and mothers, brothers and sisters, uncles and aunts, nephews and nieces, as the old indo-american system of kinship. but how remarkable! the hawaiian system of kinship again did not agree with the family form actually prevailing there. for there all the children of brothers and sisters, without any exception, are considered brothers and sisters, and regarded as the common children not only of their mother or her sisters, or their father and his brothers, but of all the brothers and sisters of their parents without distinction. while thus the american system of kinship presupposes an obsolete primitive form of the family, which is still actually existing in hawaii, the hawaiian system on the other hand points to a still more primitive form of the family, the actual existence of which cannot be proved any more, but which must have existed, because otherwise such a system of kinship could not have arisen. according to morgan, the family is the active element; it is never stationary, but in progression from a lower to a higher form in the same measure in which society develops from a lower to a higher stage. but the systems of kinship are passive. only in long intervals they register the progress made by the family in course of time, and only then are they radically changed, when the family has done so. "and," adds marx, "it is the same with political, juridical, religious and philosophical systems in general." while the family keeps on growing, the system of kinship becomes ossified. the latter continues in this state and the family grows beyond it. with the same certainty which enabled cuvier to conclude from some bones of marsupialia found near paris that extinct marsupialia had lived there, with this same certainty may we conclude from a system of kinship transmitted by history that the extinct form of the family corresponding to this system was once in existence. the systems of kinship and forms of the family just mentioned differ from the present systems in that every child has several fathers and mothers. under the american system to which the hawaiian system corresponds, brother and sister cannot be father and mother of the same child; but the hawaiian system presupposes a family, in which, on the contrary, this was the rule. we are here confronted by a series of family forms that are in direct contradiction with those that were currently regarded as alone prevailing. the conventional conception knows only monogamy, furthermore polygamy of one man, eventually also polyandry of one woman. but it passes in silence, as is meet for a moralizing philistine, that the practice silently but without compunction supersedes these barriers sanctioned officially by society. the study of primeval history, however, shows us conditions, where men practiced polygamy and women at the same time polyandry, so that their children were considered common to all; conditions that up to their final transition into monogamy underwent a whole series of modifications. these modifications slowly and gradually contract the circle comprised by the common tie of marriage until only the single couple remains which prevails to-day. in thus constructing backward the history of the family, morgan, in harmony with the majority of his colleagues, arrives at a primeval condition, where unrestricted sexual intercourse existed within a tribe, so that every woman belonged to every man, and vice versa. much has been said about this primeval state of affairs since the eighteenth century, but only in general commonplaces. it is one of bachofen's great merits to have taken the subject seriously and to have searched for traces of this state in historical and religious traditions. to-day we know that these traces, found by him, do not lead back to a stage of unlimited sexual intercourse, but to a much later form, the group marriage. the primeval stage, if it really ever existed, belongs to so remote a period, that we can hardly expect to find direct proofs of its former existence among these social fossils, backward savages. bachofen's merit consists in having brought this question to the fore.[7] it has lately become a fashion to deny the existence of this early stage of human sex life, in order to spare us this "shame." apart from the absence of all direct proof, the example of the rest of animal life is invoked. from the latter, letourneau (evolution du mariage et de la famille, 1888) quoted numerous facts, alleged to prove that among animals also an absolutely unlimited sexual intercourse belongs to a lower stage. but i can only conclude from all these facts that they prove absolutely nothing for man and the primeval conditions of his life. the mating of vertebrates for a lengthy term is sufficiently explained by physiological causes, e. g., among birds by the helplessness of the female during brooding time. examples of faithful monogamy among birds do not furnish any proofs for men, for we are not descended from birds. and if strict monogamy is the height of virtue, then the palm belongs to the tapeworm that carries a complete male and female sexual apparatus in each of its 50 to 200 sections and passes its whole lifetime in fertilizing itself in every one of its sections. but if we confine ourselves to mammals, we find all forms of sexual intercourse, license, suggestions of group marriage, polygamy and monogamy. only polyandry is missing;[8] that could be accomplished by men only. even our next relations, the quadrumana, exhibit all possible differences in the grouping of males and females. and if we draw the line still closer and consider only the four anthropoid apes, letourneau can only tell us, that they are now monogamous, now polygamous; while saussure contends according to giraud-teulon that they are monogamous. the recent contentions of westermarck[9] in regard to monogamy among anthropoid apes are far from proving anything. in short, the information is such that honest letourneau admits: "there exists no strict relation at all between the degree of intellectual development and the form of sexual intercourse among mammals." and espinas says frankly:[10] "the herd is the highest social group found among animals. it seems to be composed of families, but from the outset the family and the herd are antagonistic; they develop in directly opposite ratio." it is evident from the above that we know next to nothing of the family and other social groups of anthropoid apes; the reports are directly contradictory. how full of contradiction, how much in need of critical scrutiny and research are the reports even on savage human tribes! but monkey tribes are far more difficult to observe than human tribes. for the present, therefore, we must decline all final conclusions from such absolutely unreliable reports. the quotation from espinas, however, offers a better clue. among higher animals, the herd and family are not supplements of one another, but antitheses. espinas demonstrates very nicely, how the jealousy of the males loosens or temporarily dissolves every herd during mating time. "where the family is closely organized, herds are formed only in exceptional cases. but wherever free sexual intercourse or polygamy are existing, the herd appears almost spontaneously.... in order that a herd may form, family ties must be loosened and the individual be free. for this reason we so rarely find organized herds among birds.... among mammals, however, we find groups organized after a fashion, just because here the individual is not merged in the family.... the rising sense of cohesion in a herd cannot, therefore, have a greater enemy than the consciousness of family ties. let us not shrink from pronouncing it: the development of a higher form of society than the family can be due only to the fact that it admitted families which had undergone a thorough change. this does not exclude the possibility that these same families were thus enabled to reorganize later on under infinitely more favorable circumstances."[11] it becomes apparent from this, that animal societies may indeed have a certain value in drawing conclusions in regard to human life--but only negatively. the higher vertebrate knows, so far as we may ascertain, only two forms of the family: polygamy or pairs. in both of them there is only one grown male, only one husband. the jealousy of the male, at the same time tie and limit of the family, creates an opposition between the animal family and the herd. the latter, a higher social form, is here rendered impossible, there loosened or dissolved during mating time, and at best hindered in its development by the jealousy of the male. this in itself is sufficient proof that the animal family and primeval human society are irreconcilable; that ancient man, struggling upward from the animal stage, either had no family at all or at the most one that does not exist among animals. a being so defenceless as evolving man might well survive in small numbers though living in an isolated state, the highest social form of which is that of pairs such as westermarck, relying on hunter's reports, attributes to the gorilla and the chimpanzee. another element is necessary for the elevation out of the animal stage, for the realization of the highest progress found in nature: the replacing of the defencelessness of the single individual by the united strength and co-operation of the whole herd. the transition from beast to man out of conditions of the sort under which the anthropoid apes are living to-day would be absolutely unexplainable. these apes rather give the impression of stray sidelines gradually approaching extinction, and at all events in process of decline. this alone is sufficient to reject all parallels between their family forms and those of primeval man. but mutual tolerance of the grown males, freedom from jealousy, was the first condition for the formation of such large and permanent groups, within which alone the transformation from beast to man could be accomplished. and indeed, what do we find to be the most ancient and original form of the family, undeniably traceable by history and even found to-day here and there? the group marriage, that form in which whole groups of men and whole groups of women mutually belong to one another, leaving only small scope for jealousy. and furthermore we find at a later stage the exceptional form of polyandry which still more supersedes all sentiments of jealousy and hence is unknown to animals. but all the forms of the group marriage known to us are accompanied by such peculiarly complicated circumstances that they of necessity point to a preceding simpler form of sexual intercourse and, hence, in the last instance to a period of unrestricted sexual intercourse corresponding to a transition from the animal to man. therefore the references to animal marriages lead us back to precisely that point, from which they were intended to remove us forever. what does the term "unrestricted sexual intercourse" mean? simply, that the restrictions in force now were not observed formerly. we have already seen the barrier of jealousy falling. if anything is certain, it is that jealousy is developed at a comparatively late stage. the same is true of incest. not only brother and sister were originally man and wife, but also the sexual intercourse between parents and children is permitted to this day among many nations. bancroft testifies to the truth of this among the kaviats of the behring strait, the kadiaks of alaska, the tinnehs in the interior of british north america; letourneau compiled reports of the same fact in regard to the chippeway indians, the coocoos in chile, the caribeans, the carens in indo-china, not to mention the tales of ancient greeks and romans about the parthians, persians, scythians, huns and so forth. before incest was invented (and it is an invention, a really valuable one indeed), sexual intercourse between parents and children could not be any more repulsive than between other persons belonging to different generations, which takes place even in our day among the most narrow-minded nations without causing any horror. even old "maids" of more than sixty years sometimes, if they are rich enough, marry young men of about thirty. eliminating from the primeval forms of the family known to us those conceptions of incest--conceptions totally different from ours and often enough in direct contradiction with them--we arrive at a form of sexual intercourse that can only be designated as unrestricted. unrestricted in the sense that the barriers drawn later on by custom did not yet exist. this in no way necessarily implies for practical purposes an injudicious pell-mell intercourse. the separate existence of pairs for a limited time is not out of the question, and even comprises the majority of cases in the group marriage of our days. and if the latest repudiator of such a primeval state, westermarck, designates as marriage every case, where both sexes remain mated until the birth of the offspring, then this is equivalent to saying that this kind of marriage may well exist during a stage of unrestricted intercourse without contradicting license, i. e., absence of barriers drawn by custom for sexual intercourse. westermarck bases himself on the opinion that "license includes the suppression of individual affections" so that "prostitution is its most genuine form." to me it rather seems that any understanding of primeval conditions is impossible as long as we look at them through brothel spectacles. we shall return to this point in the group marriage. according to morgan, the following forms developed from this primeval state at an apparently early stage: 1. the consanguine family. the consanguine family is the first step toward the family. here the marriage groups are arranged by generations: all the grand-fathers and grand-mothers within a certain family are mutually husbands and wives; and equally their children, the fathers and mothers, whose children form a third cycle of mutual mates. the children of these again, the great-grandchildren of the first cycle, will form a fourth. in this form of the family, then, only ancestors and descendants are excluded from what we would call the rights and duties of marriage. brothers and sisters, male and female cousins of the first, second and more remote grades, are all mutually brothers and sisters and for this reason mutual husbands and wives. the relation of brother and sister quite naturally includes at this stage the practice of sexual intercourse.[12] the typical form of such a family would consist of the offspring of one pair, representing again the descendants of each grade as mutual brothers and sisters and, therefore, mutual husbands and wives. the consanguine family is extinct. even the crudest nations of history do not furnish any proofs of it. but the hawaiian system of kinship, in force to this day in all polynesia, compels us to acknowledge its former existence, for it exhibits grades of kinship that could only originate in this form of the family. and the whole subsequent development of the family compels us to admit this form as a necessary step. 2. the punaluan family. while the first step of organization consisted in excluding parents and children from mutual sexual intercourse, the second was the erection of a barrier between brother and sister. this progress was much more important on account of the greater equality in the ages of the parties concerned, but also far more difficult. it was accomplished gradually, probably beginning with the exclusion of the natural sister (i. e., on the mother's side) from sexual intercourse, first in single cases, then becoming more and more the rule (in hawaii exceptions were still noted during the nineteenth century), and finally ending with the prohibition of marriage even among collateral brothers and sisters, i. e., what we now term brother's and sister's children, grandchildren, and great-grandchildren. this progress offers, according to morgan, an excellent illustration how the principle of natural selection works. without question, the tribes limiting inbreeding by this progress developed faster and more completely than those retaining the marriage between brothers and sisters as a rule and law. and how powerfully the influence of this progress was felt, is shown by the institution of the gens, directly attributable to it and passing far beyond the goal. the gens is the foundation of the social order of most, if not all, barbarian nations, and in greece and rome we step immediately from it to civilization. every primeval family necessarily had to divide after a few generations. the originally communistic and collective household existing far into the middle stage of barbarism, involved a certain maximum size of the family, variable according to conditions, but still limited in a degree. as soon as the conception of the impropriety of sexual intercourse between children of the same mother arose, it naturally became effective on such occasions as the division of old and the foundation of new household communities (which, however, did not necessarily coincide with the family group). one or more series of sisters became the center of one group, their natural brothers that of another. in this or a similar manner that form which morgan styles the punaluan family developed from the consanguine family. according to hawaiian custom, a number of sisters, natural or more remote (i. e., cousins of the first, second and more remote degrees) were the mutual wives of their mutual husbands, their natural brothers excepted. these men now no longer addressed one another as "brother"--which they no longer had to be--but as "punalua," i. e., intimate companion, associate as it were. likewise a series of natural or more remote brothers lived in mutual marriage with a number of women, not their natural sisters, and these women referred to each other as "punalua." this is the classical form of a family, which later admitted of certain variations. its fundamental characteristic was mutual community of husbands and wives within a given family with the exclusion of the natural brothers (or sisters) first, and of the more remote grades later. this form of the family, now, furnishes with complete accuracy the degrees of kinship expressed by the american system. the children of the sisters of my mother still are her children; likewise the children of the brothers of my father still his children; and all of them are my brothers and sisters. but the children of the brothers of my mother are now her nephews and nieces, the children of the sisters of my father his nephew and nieces, and they are all my cousins. for while the husbands of the sisters of my mother are still her husbands, and likewise the wives of the brothers of my father still his wives--legally, if not always in fact--the social proscription of sexual intercourse between brothers and sisters has now divided those relatives who were formerly regarded without distinction as brothers and sisters, into two classes. in one category are those who remain (more remote) brothers and sisters as before; in the other the children of the brother on one hand or the sister on the opposite, who can be brothers and sisters no longer. the latter have mutual parents no more, neither father nor mother nor both together. and for this reason the class of nephews and nieces, male and female cousins, here becomes necessary for the first time. under the former family order this would have been absurd. the american system of kinship, which appears absolutely paradoxical in any family form founded on monogamy, is rationally explained and naturally confirmed in its most minute details by the punaluan family. wherever this system of kinship was in force, there the punaluan family or at least a form akin to it must also have existed. this family form, the existence of which in hawaii was actually demonstrated, would have been transmitted probably by all polynesia, if the pious missionaries, similar to the spanish monks in america, could have looked upon such anti-christian relations as being something more than simply a "horror."[13] cesar's report to the effect that the britons, who then were in the middle stage of barbarism, "have ten or twelve women in common, mostly brothers with brothers and parents with children," is best explained by group marriage. barbarian mothers have not ten or twelve sons old enough to keep women in common, but the american system of kinship corresponding to the punaluan family furnishes many brothers, because all near and remote cousins of a certain man are his brothers. the term "parents with children" may arise from a wrong conception of cesar, but this system does not absolutely exclude the existence of father and son, mother or daughter in the same group. it does exclude, however, father and daughter or mother and son. this or a similar form of group marriage also furnishes the easiest explanation of the reports of herodotus and other ancient writers concerning community of women among savage and barbarian nations. this is true, furthermore, of watson's and kaye's[14] tale about the tikurs of audh (north of the ganges): "they live together (i. e., sexually) almost indiscriminately in large communities, and though two persons may be considered as being married, still the tie is only nominal." the institution of the gens seems to have its origin in the majority of cases in the punaluan family. true, the australian class system also offers a starting point for it; the australians have gentes, but not yet a punaluan family, only a cruder form of group marriage.[15] in all forms of the group family it is uncertain who is the father of a child, but certain, who is its mother. although she calls all the children of the aggregate family her children and has the duties of a mother toward them, still she knows her natural children from others. it is also obvious that, as far as group marriage exists, descent can only be traced on the mother's side and, hence, only female lineage be acknowledged. this is actually the case among all savage tribes and those in the lower stage of barbarism. to have discovered this first is the second great merit of bachofen. he designates this exclusive recognition of descent from the female line and the hereditary relations resulting therefrom in course of time as "maternal law." i retain this term for the sake of brevity, although it is distorted; for at this social stage there is no sign yet of any law in the juridic sense. if we now take one of the two standard groups of a punaluan family, namely that of a series of natural and remote sisters (i. e., first, second and more remote descendants of natural sisters), their children and their natural or remote brothers on the mother's side (who according to our supposition are not their husbands), we have exactly that circle of persons who later appear as members of a gens, in the original form of this institution. they all have a common ancestress, by virtue of the descent that makes the different female generations sisters. but the husbands of these sisters cannot be chosen among their brothers any more, can no longer come from the same ancestress, and do not, therefore, belong to the consanguineous group of relatives, the gens of a later time. the children of these same sisters, however, do belong to this group, because descent from the female line alone is conclusive, alone is positive. as soon as the proscription of sexual intercourse between all relatives on the mother's side, even the most remote of them, is an accomplished fact, the above named group has become a gens, i. e., constitutes a definite circle of consanguineous relatives of female lineage who are not permitted to marry one another. henceforth this circle is more and more fortified by other mutual institutions of a social or religious character and thus distinguished from other gentes of the same tribe. of this more anon. finding, as we do, that the gens not only necessarily, but also as a matter of course, develops from the punaluan family, it becomes obvious to us to assume as almost practically demonstrated the prior existence of this family form among all those nations where such gentes are traceable, i. e., nearly all barbarian and civilized nations. when morgan wrote his book, our knowledge of group marriage was very limited. we knew very little about the group marriages of the australians organized in classes, and furthermore morgan had published as early as 1871 the information he had received about the punaluan family of hawaii. this family on one hand furnished a complete explanation of the system of kinship in force among the american indians, which had been the point of departure for all the studies of morgan. on the other hand it formed a ready means for the deduction of the maternal law gens. and finally it represented a far higher stage of development than the australian classes. it is, therefore, easy to understand how morgan could regard this form as the stage necessarily preceding the pairing family and attribute general extension in former times to it. since then we have learned of several other forms of the group marriage, and we know that morgan went too far in this respect. but it was nevertheless his good fortune to encounter in his punaluan family the highest, the classical, form of group marriage, that form which gave the simplest clue for the transition to a higher stage. the most essential contribution to our knowledge of the group marriage we owe to the english missionary, lorimer fison, who studied this form of the family for years on its classical ground, australia. he found the lowest stage of development among the papuans near mount gambier in south australia. here the whole tribe is divided into two great classes, kroki and kumite.[16] sexual intercourse within each of these classes is strictly prohibited. but every man of one class is by birth the husband of every woman of the other class, and vice versa. not the individuals are married to one another, but the whole groups, class to class. and mark well, no caution is made anywhere on account of difference of age or special consanguinity, unless it is resulting from the division into two exogamous classes. a kroki has for his wife every kumite woman. and as his own daughter, being the daughter of a kumite woman, is also kumite according to maternal law, she is therefore the born wife of every kroki, including her father. at least, the class organization, as we know it, does not exclude this possibility. hence this organization either arose at a time when, in spite of all dim endeavor to limit inbreeding, sexual intercourse between parents and children was not yet regarded with any particular horror; in this case the class system would be directly evolved from a condition of unrestricted sexual relations. or the intercourse between parents and children was already proscribed by custom, when the classes were formed; and in this case the present condition points back to the consanguine family and is the first step out of it. the latter case is the more probable. so far as i know, no mention is made of any sexual intercourse between parents and children in australia. even the later form of exogamy, the maternal law gens, as a rule silently presupposes that the prohibition of this intercourse was an accomplished fact at the time of its institution. the system of two classes is not only found near mount gambier in south australia, but also farther east along darling river, and in the northeast of queensland. it is, consequently, widespread. it excludes only marriage between brothers and sisters, between brothers' children and between sisters' children of the mother's side, because these belong to the same class; but the children of a sister can marry those of a brother and vice versa. a further step for preventing inbreeding is found among the kamilaroi on the darling river in new south wales, where the two original classes are split into four, and every one of these is married as a whole to a certain other class. the first two classes are husbands and wives by birth. according to the place of the mother in the first or second class, the children belong to the third and fourth. the children of these two classes, who are also married to one another, again belong to the first and second class. so that a certain generation belongs to the first and second class, the next to the third and fourth and the following again to the first and second. hence the children of natural brothers and sisters (on the mother's side) cannot marry one another, but their grandchildren can do so. this peculiarly complicated order of things is still more entangled by the inoculation--evidently at a later stage--with maternal law gentes. but we cannot discuss this further. enough, the desire to prevent inbreeding again and again demands recognition, but feeling its way quite spontaneously, without a clear conception of the goal. the group marriage is represented in australia by class marriage, i. e., mass marriage of a whole class of men frequently scattered over the whole breadth of the continent to an equally widespread class of women. a close view of this group marriage does not offer quite such a horrible spectacle as the philistine imagination accustomed to brothel conditions generally pictures to itself. on the contrary, long years passed, before its existence was even suspected, and quite recently it is once more denied. to the casual observer it makes the impression of a loose monogamy and in certain places of polygamy, with occasional breach of faith. years are required before one can discover, like fison and howitt, the law regulating these marital conditions that rather appeal in their practicability to the average european; the law enabling the strange papuan, thousands of miles from his home and among people whose language he does not understand, to find frequently, from camp to camp and from tribe to tribe, women who will without resistance and guilelessly surrender to him; the law according to which a man with several women offers one to his guest for the night. where the european sees immorality and lawlessness, there in reality a strict law is observed. the women belong to the marriage class of the stranger and, therefore, they are his wives by birth. the same moral law assigning both to one another forbids under penalty of proscription all sexual intercourse outside of the two marriage classes. even when women are abducted, as is frequently the case in certain regions, the class law is carefully respected. in the abduction of women, by the way, a trace of transition to monogamy is found even here, at least in the form of the pairing family. if a young man has abducted a girl with the help of his friends, they hold sexual intercourse with her one after another. but after that the girl is regarded as the wife of the young man who planned the abduction. and again, if an abducted woman deserts her husband and is caught by another man, she becomes the wife of the latter and the first has lost his privilege. alongside of and within the generally existing group marriage such exclusive relations are formed, pairing for a shorter or longer term by the side of polygamy, so that here also group marriage is declining. the question is only which will first disappear under the pressure of european influence: group marriage or the papuans addicted to it. the marriage in whole classes, such as is in force in australia, is no doubt a very low and primitive form of group marriage, while the punaluan family, so far as we know, is its highest stage of development. the former seems to be corresponding to the social stage of roving savages, the latter requires relatively settled communistic bodies and leads directly to the next higher stage of development. between these two, we shall no doubt find many an intermediate stage. here lies a barely opened, hardly entered field of investigation.[17] 3. the pairing family. a certain pairing for a longer or shorter term took place even during the group marriage or still earlier. a man had his principal wife (one can hardly call it favorite wife as yet) among many women, and he was to her the principal husband among others. this fact in no small degree contributed to the confusion among missionaries, who regarded group marriage now as a disorderly community of women, now as an arbitrary adultery. such a habitual pairing would gain ground the more the gens developed and the more numerous the classes of "brothers" and "sisters" became who were not permitted to marry one another. the impulse to prevent marriage of consanguineous relatives started by the gens went still further. thus we find that among the iroquois and most of the indians in the lower stage of barbarism marriage is prohibited between all the relatives of their system of kinship, and this comprises several hundred kinds. by this increasing complication of marriage restrictions, group marriage became more and more impossible; it was displaced by the pairing family. at this stage one man lives with one woman, but in such a manner that polygamy, and occasional adultery, remain privileges of men, although the former occurs rarely for economic reasons. women, however, are generally expected to be strictly faithful during the time of living together, and adultery on their part is cruelly punished. but the marriage-tie may be easily broken by either party, and the children belong to the mother alone, as formerly. in this ever more extending restriction of marriage between consanguineous relations, natural selection also remains effective. as morgan expresses it: "marriages between gentes that were not consanguineous produced a more vigorous race, physically and mentally; two progressive tribes intermarried, and the new skulls and brains naturally expanded until they comprised the faculties of both." thus tribes composed of gentes necessarily either gained the supremacy over the backward ones or, by their example, carried them along in their wake. the development of the family, then, is founded on the continual contraction of the circle, originally comprising the whole tribe, within which marital intercourse between both sexes was general. by the continual, exclusion, first of near, then of ever remoter relatives, including finally even those who were simply related legally, all group marriage becomes practically impossible. at last only one couple, temporarily and loosely united, remains; that molecule, the dissolution of which absolutely puts an end to marriage. even from this we may infer how little the sexual love of the individual in the modern sense of the word had to do with the origin of monogamy. the practice of all nations of that stage still more proves this. while in the previous form of the family the men were never embarrassed for women, but rather had more than enough of them, women now became scarce and were sought after. with the pairing family, therefore, the abduction and barter of women began--widespread symptoms, and nothing but that, of a new and much more profound change. the pedantic scot, mclennan, however, transmuted these symptoms, mere methods of obtaining women, into separate classes of the family under the head of "marriage by capture" and "marriage by barter." moreover among american indians and other nations in the same stage, the marriage agreement is not the business of the parties most concerned, who often are not even asked, but of their mothers. frequently two persons entirely unknown to one another are thus engaged to be married and receive no information of the closing of the bargain, until the time for the marriage ceremony approaches. before the wedding, the bridegroom brings gifts to the maternal relatives of the bride (not to her father or his relatives) as an equivalent for ceding the girl to him. either of the married parties may dissolve the marriage at will. but among many tribes, as, e. g., the iroquois, public opinion has gradually become averse to such separations. in case of domestic differences the gentile relatives of both parties endeavor to bring about a reconciliation, and not until they are unsuccessful a separation takes place. in this case the woman keeps the children, and both parties are free to marry again. the pairing family, being too weak and too unstable to make an independent household necessary or even desirable, in no way dissolves the traditional communistic way of housekeeping. but household communism implies supremacy of women in the house as surely as exclusive recognition of a natural mother and the consequent impossibility of identifying the natural father signify high esteem for women, i. e., mothers. it is one of the most absurd notions derived from eighteenth century enlightenment, that in the beginning of society woman was the slave of man. among all savages and barbarians of the lower and middle stages, sometimes even of the higher stage, women not only have freedom, but are held in high esteem. what they were even in the pairing family, let arthur wright, for many years a missionary among the seneca iroquois, testify: "as to their families, at a time when they still lived in their old long houses (communistic households of several families) ... a certain clan (gens) always reigned, so that the women choose their husbands from other clans (gentes).... the female part generally ruled the house; the provisions were held in common; but woe to the luckless husband or lover who was too indolent or too clumsy to contribute his share to the common stock. no matter how many children or how much private property he had in the house, he was liable at any moment to receive a hint to gather up his belongings and get out. and he could not dare to venture any resistance; the house was made too hot for him and he had no other choice, but to return to his own clan (gens) or, as was mostly the case, to look for another wife in some other clan. the women were the dominating power in the clans (gentes) and everywhere else. occasionally they did not hesitate to dethrone a chief and degrade him to a common warrior." the communistic household, in which most or all the women belong to one and the same gens, while the husbands come from different gentes, is the cause and foundation of the general and widespread supremacy of women in primeval times. the discovery of this fact is the third merit of bachofen. by way of supplement i wish to state that the reports of travelers and missionaries concerning the overburdening of women among savages and barbarians do not in the least contradict the above statements. the division of labor between both sexes is caused by other reasons than the social condition of women. nations, where women have to work much harder than is proper for them in our opinion, often respect women more highly than europeans do. the lady of civilized countries, surrounded with sham homage and a stranger to all real work stands on a far lower social level than a hard-working barbarian woman, regarded as a real lady (frowa-lady-mistress) and having the character of such. whether or not the pairing family has in our time entirely supplanted group marriage in america, can be decided only by closer investigations among those nations of northwestern and especially of southern america that are still in the higher stage of savagery. about the latter so many reports of sexual license are current that the assumption of a complete cessation of the ancient group marriage is hardly warranted. evidently all traces of it have not yet disappeared. in at least forty north american tribes the man marrying an elder sister has the right to make all her sisters his wives as soon as they are of age, a survival of the community of men for the whole series of sisters. and bancroft relates that the indians of the californian peninsula celebrate certain festivities uniting several "tribes" for the purpose of unrestricted sexual intercourse. these are evidently gentes that have preserved in these festivities a vague recollection of the time when the women of one gens had for their common husbands all the men of another gens, and vice versa. the same custom is still observed in australia. among certain nations it sometimes happens that the older men, the chief and sorcerer-priests, exploit the community of women for their own benefits and monopolize all the women. but in their turn they must restore the old community during certain festivities and great assemblies, permitting their wives to enjoy themselves with the young men. a whole series of examples of such periodical saturnalia restoring for a short time the ancient sexual freedom is quoted by westermarck:[18] among the hos, the santals, the punjas and kotars in india, among some african nations, etc. curiously enough westermarck concludes that this is a survival, not of group marriage, the existence of which he denies, but--of a rutting season which primitive man had in common with other animals. here we touch bachofen's fourth great discovery: the widespread form of transition from group marriage to pairing family. what bachofen represents as a penance for violating the old divine laws--the penalty with which a woman redeems her right to chastity, is in fact only a mystical expression for the penalty paid by a woman for becoming exempt from the ancient community of men and acquiring the right of surrendering to one man only. this penalty consists in a limited surrender: babylonian women had to surrender once a year in the temple of mylitta; other nations of western asia sent their young women for years to the temple of anaitis, where they had to practice free love with favorites of their own choice before they were allowed to marry. similar customs in a religious disguise are common to nearly all asiatic nations between the mediterranean and the ganges. the penalty for exemption becomes gradually lighter in course of time, as bachofen remarks: "the annually repeated surrender gives place to a single sacrifice; the hetaerism of the matrons is followed by that of the maidens, the promiscuous intercourse during marriage to that before wedding, the indiscriminate intercourse with all to that with certain individuals."[19] among some nations the religious disguise is missing. among others--thracians, celts, etc., in classic times, many primitive inhabitants of india, malay nations, south sea islanders and many american indians to this day--the girls enjoy absolute sexual freedom before marriage. this is especially true almost everywhere in south america, as everybody can confirm who penetrates a little into the interior. agassiz, e. g., relates[20] an anecdote of a wealthy family of indian descent. on being introduced to the daughter he asked something about her father, presuming him to be her mother's husband, who was in the war against paraguay. but the mother replied, smiling: "nao tem pai, he filha da fortuna"--she hasn't any father; she is the daughter of chance. "it is the way the indian or half-breed women here always speak of their illegitimate children; and though they say it without an intonation of sadness or of blame, apparently as unconscious of any wrong or shame as if they said the father was absent or dead, it has the most melancholy significance; it seems to speak of such absolute desertion. so far is this from being an unusual case, that among the common people the opposite seems the exception. children are frequently quite ignorant of their parentage. they know about their mother, for all the care and responsibility falls upon her, but they have no knowledge of their father; nor does it seem to occur to the woman that she or her children have any claim upon him." what seems so strange to the civilized man, is simply the rule of maternal law and group marriage. again, among other nations the friends and relatives of the bridegroom or the wedding guests claim their traditional right to the bride, and the bridegroom comes last. this custom prevailed in ancient times on the baleares and among the african augilers; it is observed to this day by the bareas in abyssinia. in still other cases, an official person--the chief of a tribe or a gens, the cazique, shamane, priest, prince or whatever may be his title--represents the community and exercises the right of the first night. all modern romantic whitewashing notwithstanding, this jus primae noctis, is still in force among most of the natives of alaska,[21] among the tahus of northern mexico[22] and some other nations. and during the whole of the middle ages it was practiced at least in originally celtic countries, where it was directly transmitted by group marriage, e. g. in aragonia. while in castilia the peasant was never a serf, the most disgraceful serfdom existed in aragonia, until abolished by the decision of ferdinand the catholic in 1486. in this document we read: "we decide and declare that the aforesaid 'senyors' (barons) ... shall neither sleep the first night with the wife of a peasant, nor shall they in the first night after the wedding, when the woman has gone to bed, step over said woman or bed as a sign of their authority. neither shall the aforesaid senyors use the daughter or the son of any peasant, with or without pay, against their will." (quoted in the catalonian original by sugenheim, "serfdom," petersburg, 1861, page 35.) bachofen, furthermore, is perfectly right in contending that the transition from what he calls "hetaerism" or "incestuous generation" to monogamy was brought about mainly by women. the more in the course of economic development, undermining the old communism and increasing the density of population, the traditional sexual relations lost their innocent character suited to the primitive forest, the more debasing and oppressive they naturally appeared to women; and the more they consequently longed for relief by the right of chastity, of temporary or permanent marriage with one man. this progress could not be due to men for the simple reason that they never, even to this day, had the least intention of renouncing the pleasures of actual group marriage. not until the women had accomplished the transition to the pairing family could the men introduce strict monogamy--true, only for women. the pairing family arose on the boundary line between savagery and barbarism, generally in the higher stage of savagery, here and there in the lower stage of barbarism. it is the form of the family characteristic for barbarism, as group marriage is for savagery and monogamy for civilization. in order to develop it into established monogamy, other causes than those active hitherto were required. in the pairing family the group was already reduced to its last unit, its biatomic molecule: one man and one woman. natural selection, had accomplished its purpose by a continually increasing restriction of sexual intercourse. nothing remained to be done in this direction. unless new social forces became active, there was no reason why a new form of the family should develop out of the pairing family. but these forces did become active. we now leave america, the classic soil of the pairing family. no sign permits the conclusion that a higher form of the family was developed here, that any established form of monogamy ever existed anywhere in the new world before the discovery and conquest. not so in the old world. in the latter, the domestication of animals and the breeding of flocks had developed a hitherto unknown source of wealth and created entirely new social conditions. up to the lower stage of barbarism, fixed wealth was almost exclusively represented by houses, clothing, rough ornaments and the tools for obtaining and preparing food: boats, weapons and household articles of the simplest kind. nourishment had to be secured afresh day by day. but now, with their herds of horses, camels, donkeys, cattle, sheep, goats and hogs, the advancing nomadic nations--the aryans in the indian punjab, in the region of the ganges and the steppes of the oxus and jaxartes, then still more rich in water-veins than now; the semites on the euphrates and tigris--had acquired possessions demanding only the most crude attention and care in order to propagate themselves in ever increasing numbers and yield the most abundant store of milk and meat. all former means of obtaining food were now forced to the background. hunting, once a necessity, now became a sport. but who was the owner of this new wealth? doubtless it was originally the gens. however, private ownership of flocks must have had an early beginning. it is difficult to say whether to the author of the so-called first book of moses father abraham appeared as the owner of his flocks by virtue of his privilege as head of a communistic family or of his capacity as gentile chief by actual descent. so much is certain: we must not regard him as a proprietor in the modern sense of the word. it is furthermore certain that everywhere on the threshold of documentary history we find the flocks in the separate possession of chiefs of families, exactly like the productions of barbarian art, such as metal ware, articles of luxury and, finally, the human cattle--the slaves. for now slavery was also invented. to the barbarian of the lower stage a slave was of no use. the american indians, therefore, treated their vanquished enemies in quite a different way from nations of a higher stage. the men were tortured or adopted as brothers into the tribe of the victors. the women were married or likewise adopted with their surviving children. the human labor power at this stage does not yet produce a considerable amount over and above its cost of subsistence. but the introduction of cattle raising, metal industry, weaving and finally agriculture wrought a change. just as the once easily obtainable wives now had an exchange value and were bought, so labor power was now procured, especially since the flocks had definitely become private property. the family did not increase as rapidly as the cattle. more people were needed for superintending; for this purpose the captured enemy was available and, besides, he could be increased by breeding like the cattle. such riches, once they had become the private property of certain families and augmented rapidly, gave a powerful impulse to society founded on the pairing family and the maternal gens. the pairing family had introduced a new element. by the side of the natural mother it had placed the authentic natural father who probably was better authenticated than many a "father" of our day. according to the division of labor in those times, the task of obtaining food and the tools necessary for this purpose fell to the share of the man; hence he owned the latter and kept them in case of a separation, as the women did the household goods. according to the social custom of that time, the man was also the owner of the new source of existence, the cattle, and later on of the new labor power, the slaves. but according to the same custom, his children could not inherit his property, for the following reasons: by maternal law, i. e., while descent was traced only along the female line, and by the original custom of inheriting in the gens, the gentile relatives inherited the property of their deceased gentile relative. the wealth had to remain in the gens. in view of the insignificance of the objects, the property may have gone in practice to the closest gentile relatives, i. e., the consanguine relatives on the mother's side. the children of the dead man, however, did not belong to his gens, but to that of their mother. they inherited first together with the other consanguine relatives of the mother, later on perhaps in preference to the others. but they could not inherit from their father, because they did not belong to his gens, where his property had to remain. hence, after the death of a cattle owner, the cattle would fall to his brothers, sisters and the children of his sisters, or to the offspring of the sisters of his mother. his own children were disinherited. in the measure of the increasing wealth man's position in the family became superior to that of woman, and the desire arose to use this fortified position for the purpose of overthrowing the traditional law of inheritance in favor of his children. but this was not feasible as long as maternal law was valid. this law had to be abolished, and it was. this was by no means as difficult as it appears to us to-day. for this revolution--one of the most radical ever experienced by humanity--did not have to touch a single living member of the gens. all its members could remain what they had always been. the simple resolution was sufficient, that henceforth the offspring of the male members should belong to the gens, while the children of the female members should be excluded by transferring them to the gens of their father. this abolished the tracing of descent by female lineage and the maternal right of inheritance, and instituted descent by male lineage and the paternal right of inheritance. how and when this revolution was accomplished by the nations of the earth, we do not know. it belongs entirely to prehistoric times. that it was accomplished is proven more than satisfactorily by the copious traces of maternal law collected especially by bachofen. how easily it is accomplished we may observe in a whole series of indian tribes, that recently passed through or are still engaged in it, partly under the influence of increasing wealth and changed modes of living (transfer from forests to the prairie), partly through the moral pressure of civilization and missionaries. six out of eight missouri tribes have male descent and inheritance, while only two retain female descent and inheritance. the shawnees, miamis and delawares follow the custom of placing their children into the male gens by giving them a gentile name belonging to the father's gens, so that they may be entitled to inherit. "innate casuistry of man, to change the objects by changing their names, and to find loopholes for breaking tradition inside of tradition where a direct interest was a sufficient motive." (marx.) this made confusion worse confounded, which could be and partially was remedied alone by paternal law. "this seems to be the most natural transition." (marx.) as to the opinion of the comparative jurists, how this transition took place among the civilized nations of the old world--although only in hypotheses--compare m. kovalevsky, tableau des origines et de l'évolution de la famille et de la propriété, stockholm, 1890. the downfall of maternal law was the historic defeat of the female sex. the men seized the reins also in the house, the women were stripped of their dignity, enslaved, tools of men's lust and mere machines for the generation of children. this degrading position of women, especially conspicuous among the greeks of heroic and still more of classic times, was gradually glossed over and disguised or even clad in a milder form. but it is by no means obliterated. the first effect of the established supremacy of men became now visible in the reappearance of the intermediate form of the patriarchal family. its most significant feature is not polygamy, of which more anon, but "the organization of a certain number of free and unfree persons into one family under the paternal authority of the head of the family. in the semitic form this head of the family lives in polygamy, the unfree members have wife and children, and the purpose of the whole organization is the tending of herds in a limited territory." the essential points are the assimilation of the unfree element and the paternal authority. hence the ideal type of this form of the family is the roman family. the word familia did not originally signify the composite ideal of sentimentality and domestic strife in the present day philistine mind. among the romans it did not even apply in the beginning to the leading couple and its children, but to the slaves alone. famulus means domestic slave, and familia is the aggregate number of slaves belonging to one man. at the time of gajus, the familia, id est patrimonium (i. e., paternal legacy), was still bequeathed by testament. the expression was invented by the romans in order to designate a new social organism, the head of which had a wife, children and a number of slaves under his paternal authority and according to roman law the right of life and death over all of them. "the word is, therefore, not older than the ironclad family system of the latin tribes, which arose after the introduction of agriculture and of lawful slavery, and after the separation of the aryan itali from the greeks." marx adds: "the modern family contains the germ not only of slavery (servitus), but also of serfdom, because it has from the start a relation to agricultural service. it comprises in miniature all those contrasts that later on develop more broadly in society and the state." such a form of the family shows the transition from the pairing family to monogamy. in order to secure the faithfulness of the wife, and hence the reliability of paternal lineage, the women are delivered absolutely into the power of the men; in killing his wife, the husband simply exercises his right. with the patriarchal family we enter the domain of written history, a field in which comparative law can render considerable assistance. and here it has brought about considerable progress indeed. we owe to maxim kovalevsky (tableau etc. de la famille et de la propriété, stockholm, 1890, p. 60-100) the proof, that the patriarchal household community, found to this day among serbians and bulgarians under the names of zádruga (friendly bond) and bratstvo (fraternity), and in a modified form among oriental nations, formed the stage of transition between the maternal family derived from group marriage and the monogamous family of the modern world. this seems at least established for the historic nations of the old world, for aryans and semites. the zádruga of southern slavonia offers the best still existing illustration of such a family communism. it comprises several generations of the father's descendants, together with their wives, all living together on the same farm, tilling their fields in common, living and clothing themselves from the same stock, and possessing collectively the surplus of their earnings. the community is managed by the master of the house (domácin), who acts as its representative, may sell inferior objects, has charge of the treasury and is responsible for it as well as for a proper business administration. he is chosen by vote and is not necessarily the oldest man. the women and their work are directed by the mistress of the house (domácica), who is generally the wife of the domácin. she also has an important, and often final, voice in choosing a husband for the girls. but the highest authority is vested in the family council, the assembly of all grown companions, male and female. the domácin is responsible to this council. it takes all important resolutions, sits in judgment on the members of the household, decides the question of important purchases and sales, especially of land, etc. it is only about ten years since the existence of such family communism in the russia of to-day was proven. at present it is generally acknowledged to be rooted in popular russian custom quite as much as the obscina or village community. it is found in the oldest russian code, the pravda of jaroslav, under the same name (vervj) as in the dalmatian code, and may also be traced in polish and czech historical records. likewise among germans, the economic unit according to heussler (institutions of german law) is not originally the single family, but the "collective household," comprising several generations or single families and, besides, often enough unfree individuals. the roman family is also traced to this type, and hence the absolute authority of the master of the house and the defenselessness of the other members in regard to him is strongly questioned of late. similar communities are furthermore said to have existed among the celts of ireland. in france they were preserved up to the time of the revolution in nivernais under the name of "parçonneries," and in the franche comté they are not quite extinct yet. in the region of louhans (saône et loire) we find large farmhouses with a high central hall for common use reaching up to the roof and surrounded by sleeping rooms accessible by the help of stairs with six to eight steps. several generations of the same family live together in such a house. in india, the household community with collective agriculture is already mentioned by nearchus at the time of alexander the great, and it exists to this day in the same region, in the punjab and the whole northwest of the country. in the caucasus it was located by kovalevski himself. in algeria it is still found among the kabyles. even in america it is said to have existed. it is supposed to be identical with the "calpullis" described by zurita in ancient mexico. in peru, however, cunow (ausland, 1890, no. 42-44) has demonstrated rather clearly that at the time of the conquest a sort of a constitution in marks (called curiously enough marca), with a periodical allotment of arable soil, and consequently individual tillage, was in existence. at any rate, the patriarchal household community with collective tillage and ownership of land now assumes an entirely different meaning than heretofore. we can no longer doubt that it played an important role among the civilized and some other nations of the old world in the transition from the maternal to the single family. later on we shall return to kovaleski's further conclusion that it was also the stage of transition from which developed the village or mark community with individual tillage and first periodical, then permanent allotment of arable and pasture lands. in regard to the family life within these household communities it must be remarked that at least in russia the master of the house has the reputation of strongly abusing his position against the younger women of the community, especially his daughters-in-law, and of transforming them into a harem for himself. russian popular songs are very eloquent on this point. before taking up monogamy, which rapidly developed after the downfall of maternal law, let me say a few words about polygamy and polyandry. both forms of the family can only be exceptions, historical products of luxury so to speak, unless they could be found side by side in the same country, which is apparently not the case. as the men excluded from polygamy cannot find consolation in the women left over by polyandry, the number of men and women being hitherto approximately equal without regard to social institutions, it becomes of itself impossible to confer on any one of these two forms the distinction of general preference. indeed, the polygamy of one man was evidently the product of slavery, confined to certain exceptional positions. in the semitic patriarchal family, only the patriarch himself, or at best a few of his sons, practice polygamy, the others must be satisfied with one wife. this is the case to-day in the whole orient. polygamy is a privilege of the wealthy and distinguished, and is mainly realized by purchase of female slaves. the mass of the people live in monogamy. polyandry in india and thibet is likewise an exception. its surely not uninteresting origin from group marriage requires still closer investigation. in its practice it seems, by the way, much more tolerant than the jealous harem establishment of the mohammedans. at least among the nairs of india, three, four or more men have indeed one woman in common; but every one of them may have a second woman in common with three or more other men; and in the same way a third, fourth, etc. it is strange that mclennan did not discover the new class of "club marriage" in these marital clubs, in several of which one may be a member and which he himself describes. this marriage club business is, however, by no means actual polyandry. it is on the contrary, as giraud-teulon already remarks, a specialized form of group marriage. the men live in polygamy, the women in polyandry. 4. the monogamous family. it develops from the pairing family, as we have already shown, during the time of transition from the middle to the higher stage of barbarism. its final victory is one of the signs of beginning civilization. it is founded on male supremacy for the pronounced purpose of breeding children of indisputable paternal lineage. the latter is required, because these children shall later on inherit the fortune of their father. the monogamous family is distinguished from the pairing family by the far greater durability of wedlock, which can no longer be dissolved at the pleasure of either party. as a rule, it is only the man who can still dissolve it and cast off his wife. the privilege of conjugal faithlessness remains sanctioned for men at least by custom (the code napoleon concedes it directly to them, as long as they do not bring their concubines into the houses of their wives). this privilege is more and more enjoyed with the increasing development of society. if the woman remembers the ancient sexual practices and attempts to revive them, she is punished more severely than ever. the whole severity of this new form of the family confronts us among the greeks. while, as marx observes, the position of the female gods in mythology shows an earlier period, when women still occupied a freer and more respected plane, we find woman already degraded by the supremacy of man and the competition of slaves during the time of the heroes. read in the odysseia how telemachos reproves and silences his mother. the captured young women, according to homer, are delivered to the sensual lust of the victors. the leaders in the order of their rank select the most beautiful captives. the whole iliad notoriously revolves around the quarrel between achilles and agamemnon about such a captured woman. in mentioning any hero of importance, the captured girl sharing his tent and bed is never omitted. these girls are also taken into the hero's home country and his house, as kassandra by agamemnon in aeschylos. boys born by these female slaves receive a small share of the paternal heirloom and are regarded as free men. teukros is such an illegitimate son and may use his father's name. the wife is expected to put up with everything, while herself remaining chaste and faithful. although the greek woman of heroic times is more highly respected than she of the civilized period, still she is for her husband only the mother of his legal heirs, his first housekeeper and the superintendent of the female slaves, whom he can and does make his concubines at will. it is this practice of slavery by the side of monogamy, the existence of young and beautiful female slaves belonging without any restriction to their master, which from the very beginning gives to monogamy the specific character of being monogamy for women only, but not for men. and this character remains to this day. for the greeks of later times we must make a distinction between dorians and ionians. the former, with sparta as their classic example, have in many respects still more antiquated marriage customs than even homer illustrates. in sparta existed a form of the pairing family modified by the contemporaneous ideas of the state and still recalling group marriage in many ways. sterile marriages were dissolved. king anaxandridas (about 650 before christ) took another wife besides his childless one and kept two households. about the same time king ariston added another wife to two childless ones, one of which he dismissed. furthermore, several brothers could have one wife in common; a friend who liked his friend's wife better than his own could share her with him, and it was not considered indecent to place a wife at the disposal of a sturdy "stallion," as bismarck would have said, even though he might not be a citizen. a certain passage in plutarch, where a spartan matron refers a lover, who persists in making offers to her, to her husband, seems to indicate--according to schoemann--even a still greater sexual freedom. also adultery, faithlessness of a wife behind her husband's back, was unheard of. on the other hand, domestic slavery in sparta, at least during the best time, was unknown, and the serf helots lived on separate country seats. hence there was less temptation for a spartan to hold intercourse with other women. as was to be expected under such circumstances, the women of sparta occupied a more highly respected place than those of other greeks. spartan women and the athenian hetaerae were the only greek women of whom the ancients speak respectfully and whose remarks they considered worthy of notice. quite a different condition among ionians, whose representative is athens. the girls learned only to spin, weave and sew, at the most a little reading and writing. they were practically shut in and had only the company of other women. the women's room formed a separate part of the house, on the upper floor or in a rear building, where men, especially strangers, did not easily enter and whither the women retreated when male visitors came. the women did not leave the house without being accompanied by a female slave. at home they were strictly guarded. aristophanes speaks of molossian dogs that were kept to frighten off adulterers. and at least in the asiatic towns, eunuchs were kept for guarding women. even at herodotus' time these eunuchs were manufactured for the trade, and according to wachsmuth not for barbarians alone. by euripides woman is designated as "oikurema," a neuter signifying an object for housekeeping, and beside the business of breeding children she served to the athenian for nothing but his chief house maid. the man had his gymnastic exercises, his public meetings, from which the women were excluded. besides, the man very often had female slaves at his disposal, and during the most flourishing time of athens an extensive prostitution which was at least patronized by the state. it was precisely on the basis of this prostitution that the unique type of ionic women developed; the hetaerae. they rose by esprit and artistic taste as far above the general level of antique womanhood as the spartan women by their character. but that it was necessary to become a hetaera before one could be a woman, constitutes the severest denunciation of the athenian family. the athenian family became in the course of time the model after which not only the rest of the ionians, but gradually all the greeks at home and abroad molded their domestic relations. nevertheless, in spite of all seclusion and watching, the grecian ladies found sufficient opportunity for deceiving their husbands. the latter who would have been ashamed of betraying any love for their wives, found recreation in all kinds of love affairs with hetaerae. but the degradation of the women was avenged in the men and degraded them also, until they sank into the abomination of boy-love. they degraded their gods and themselves by the myth of ganymedes. such was the origin of monogamy, as far as we may trace it in the most civilized and most highly developed nation of antiquity. it was by no means a fruit of individual sex-love and had nothing to do with the latter, for the marriages remained as conventional as ever. monogamy was the first form of the family not founded on natural, but on economic conditions, viz.: the victory of private property over primitive and natural collectivism. supremacy of the man in the family and generation of children that could be his offspring alone and were destined to be the heirs of his wealth--these were openly avowed by the greeks to be the sole objects of monogamy. for the rest it was a burden to them, a duty to the gods, the state and their own ancestors, a duty to be fulfilled and no more. in athens the law enforced not only the marriage, but also the fulfillment of a minimum of the so-called matrimonial duties on the man's part. monogamy, then, does by no means enter history as a reconciliation of man and wife and still less as the highest form of marriage. on the contrary, it enters as the subjugation of one sex by the other, as the proclamation of an antagonism between the sexes unknown in all preceding history. in an old unpublished manuscript written by marx and myself in 1846, i find the following passage: "the first division of labor is that of man and wife in breeding children." and to-day i may add: the first class antagonism appearing in history coincides with the development of the antagonism of man and wife in monogamy, and the first class oppression with that of the female by the male sex. monogamy was a great historical progress. but by the side of slavery and private property it marks at the same time that epoch which, reaching down to our days, takes with all progress also a step backwards, relatively speaking, and develops the welfare and advancement of one by the woe and submission of the other. it is the cellular form of civilized society which enables us to study the nature of its now fully developed contrasts and contradictions. the old relative freedom of sexual intercourse by no means disappeared with the victory of the pairing or even of the monogamous family. "the old conjugal system, now reduced to narrower limits by the gradual disappearance of the punaluan groups, still environed the advancing family, which it was to follow to the verge of civilization.... it finally disappeared in the new form of hetaerism, which still follows mankind in civilization as a dark shadow upon the family."[23] by hetaerism morgan designates sexual intercourse of men with unmarried women outside of the monogamous family, flourishing, as is well known, during the whole period of civilization in many different forms and tending more and more to open prostitution. this hetaerism is directly derived from group marriage, from the sacrificial surrender of women for the purpose of obtaining the right to chastity. the surrender for money was at first a religious act; it took place in the temple of the goddess of love and the money flowed originally into the treasury of the temple. the hierodulae of anaitis in armenia, of aphrodite in corinth and the religious dancing girls of india attached to the temples, the so-called bajaderes (derived from the portuguese "bailadera," dancing girl), were the first prostitutes. the surrender, originally the duty of every woman, was later on practiced by these priestesses alone in representation of all others. among other nations, hetaerism is derived from the sexual freedom permitted to girls before marriage--also a survival of the group marriage, only transmitted by another route. with the rise of different property relations, in the higher stage of barbarism, wage labor appears sporadically by the side of slavery, and at the same time its unavoidable companion, professional prostitution of free women by the side of the forced surrender of female slaves. it is the heirloom bequeathed by group marriage to civilization, a gift as ambiguous as everything else produced by ambiguous, double-faced, schismatic and contradictory civilization. here monogamy, there hetaerism and its most extreme form, prostitution. hetaerism is as much a social institution as all others. it continues the old sexual freedom--for the benefit of the men. in reality not only permitted, but also assiduously practised by the ruling class, it is denounced only nominally. still in practice this denunciation strikes by no means the men who indulge in it, but only the women. these are ostracised and cast out by society, in order to proclaim once more the fundamental law of unconditional male supremacy over the female sex. however, a second contradiction is thereby developed within monogamy itself. by the side of the husband, who is making his life pleasant by hetaerism, stands the neglected wife. and you cannot have one side of the contradiction without the other, just as you cannot have the whole apple after eating half of it. nevertheless this seems to have been the idea of the men, until their wives taught them a lesson. monogamy introduces two permanent social characters that were formerly unknown: the standing lover of the wife and the cuckold. the men had gained the victory over the women, but the vanquished magnanimously provided the coronation. in addition to monogamy and hetaerism, adultery became an unavoidable social institution--denounced, severely punished, but irrepressible. the certainty of paternal parentage rested as of old on moral conviction at best, and in order to solve the unreconcilable contradiction, the code napoléon decreed in its article 312: "l'enfant conçu pendant le mariage a pour père le mari;" the child conceived during marriage has for its father--the husband. this is the last result of three thousand years of monogamy. thus we have in the monogamous family, at least in those cases that remain true to historical development and clearly express the conflict between man and wife created by the exclusive supremacy of men, a miniature picture of the contrasts and contradictions of society at large. split by class-differences since the beginning of civilization, society has been unable to reconcile and overcome these antitheses. of course, i am referring here only to those cases of monogamy, where matrimonial life actually remains in accord with the original character of the whole institution, but where the wife revolts against the rule of the man. nobody knows better than your german philistine that not all marriages follow such a course. he does not understand how to maintain the control of his own home any better than that of the state, and his wife is, therefore, fully entitled to wearing the trousers, which he does not deserve. but he thinks himself far superior to his french companion in misery, who more frequently fares far worse. the monogamous family, by the way, did not everywhere and always appear in the classic severe form it had among the greeks. among the romans, who as future conquerors of the world had a sharper although less refined eye than the greeks, the women were freer and more respected. a roman believed that the conjugal faith of his wife was sufficiently safeguarded by his power over her life and death. moreover, the women could voluntarily dissolve the marriage as well as the men. but the highest progress in the development of monogamy was doubtless due to the entrance of the germans into history, probably because on account of their poverty their monogamy had not yet fully outgrown the pairing family. three facts mentioned by tacitus favor this conclusion: in the first place, although marriage was held very sacred--"they are satisfied with one wife, the women are protected by chastity"--still polygamy was in use among the distinguished and the leaders of the tribes, as was the case in the pairing families of the american indians. secondly, the transition from maternal to paternal law could have taken place only a short while before, because the mother's brother--the next male relative in the gens by maternal law--was still considered almost a closer relative than the natural father, also in accordance with the standpoint of the american indians. the latter furnished to marx, according to his own testimony, the key to the comprehension of german primeval history. and thirdly, the german women were highly respected and also influenced public affairs, a fact directly opposed to monogamic male supremacy. in all these things the germans almost harmonize with the spartans, who, as we saw, also had not fully overcome the pairing family. hence in this respect an entirely new element succeeded to the world's supremacy with the germans. the new monogamy now developing the ruins of the roman world from the mixture of nations endowed male rule with a milder form and accorded to women a position that was at least outwardly far more respected and free than classical antiquity ever knew. not until now was there a possibility of developing from monogamy--in it, by the side of it or against it, as the case might be--the highest ethical progress we owe to it: the modern individual sexlove, unknown to all previous ages. this progress doubtless arose from the fact that the germans still lived in the pairing family and inoculated monogamy as far as possible with the position of women corresponding to the former. it was in no way due to the legendary and wonderfully pure natural qualities of the germans. these qualities were limited to the simple fact that the pairing family indeed does not create the marked moral contrasts of monogamy. on the contrary, the germans, especially those who wandered southeast among the nomadic nations of the black sea, had greatly degenerated morally. beside the equestrian tricks of the inhabitants of the steppe they had also acquired some very unnatural vices. this is expressly confirmed of the thaifali by ammianus and of the heruli by prokop. although monogamy was the only one of all known forms of the family in which modern sexlove could develop, this does not imply that it developed exclusively or even principally as mutual love of man and wife. the very nature of strict monogamy under man's rule excluded this. among all historically active, i. e., ruling, classes matrimony remained what it had been since the days of the pairing family--a conventional matter arranged by the parents. and the first historical form of sexlove as a passion, as an attribute of every human being (at least of the ruling classes), the specific character of the highest form of the sexual impulse, this first form, the love of the knights in the middle ages, was by no means matrimonial love, but quite the contrary. in its classic form, among the provençals, it heads with full sails for adultery and their poets extol the latter. the flower of provençal love poetry, the albas, describe in glowing colors how the knight sleeps with his adored--the wife of another--while the watchman outside calls him at the first faint glow of the morning (alba) and enables him to escape unnoticed. the poems culminate in the parting scene. likewise the frenchmen of the north and also the honest germans adopted this style of poetry and the manner of knightly love corresponding to it. old wolfram von eschenbach has left us three wonderful "day songs" treating this same questionable subject, and i like them better than his three heroic epics. civil matrimony in our day is of two kinds. in catholic countries, the parents provide a fitting spouse for their son as of old, and the natural consequence is the full development of the contradictions inherent to monogamy: voluptuous hetaerism on the man's part, voluptuous adultery of the woman. probably the catholic church has abolished divorce for the simple reason that it had come to the conclusion, there was as little help for adultery as for death. in protestant countries, again, it is the custom to give the bourgeois son more or less liberty in choosing his mate. hence a certain degree of love may be at the bottom of such a marriage and for the sake of propriety this is always assumed, quite in keeping with protestant hypocrisy. in this case hetaerism is carried on less strenuously and adultery on the part of the woman is not so frequent. but as human beings remain under any form of marriage what they were before marrying, and as the citizens of protestant countries are mostly philistines, this protestant monogamy on the average of the best cases confines itself to the community of a leaden ennui, labeled wedded bliss. the best mirror of these two species of marriage is the novel, the french novel for the catholic, the german novel for the protestant brand. in both of these novels they "get one another:" in the german novel the man gets the girl, in the french novel the husband gets the horns. it does not always go without saying which of the two deserves the most pity. for this reason the tediousness of the german novels is abhorred as much by the french bourgeois as the "immorality" of the french novels by the german philistine. of late, since berlin became cosmopolitan, the german novel begins to treat somewhat timidly of the hetaerism and adultery that a long time ago became familiar features of that city. in both cases the marriage is influenced by the class environment of the participants, and in this respect it always remains conventional. this conventionalism often enough results in the most pronounced prostitution--sometimes of both parties, more commonly of the woman. she is distinguished from a courtisane only in that she does not offer her body for money by the hour like a commodity, but sells it into slavery for once and all. fourier's words hold good with respect to all conventional marriages: "as in grammar two negatives make one affirmative, so in matrimonial ethics, two prostitutions are considered as one virtue." sexual love in man's relation to woman becomes and can become the rule among the oppressed classes alone, among the proletarians of our day--no matter whether this relation is officially sanctioned or not. here all the fundamental conditions of classic monogamy have been abolished. here all property is missing and it was precisely for the protection and inheritance of this that monogamy and man rule were established. hence all incentive to make this rule felt is wanting here. more still, the funds are missing. civil law protecting male rule applies only to the possessing classes and their intercourse with proletarians. law is expensive and therefore the poverty of the laborer makes it meaningless for his relation to his wife. entirely different personal and social conditions decide in this case. and finally, since the great industries have removed women from the home to the labor market and to the factory, the last remnant of man rule in the proletarian home has lost its ground--except, perhaps, a part of the brutality against women that has become general since the advent of monogamy. thus the family of the proletarian is no longer strictly monogamous, even with all the most passionate love and the most unalterable loyalty of both parties, and in spite of any possible clerical or secular sanction. consequently the eternal companions of monogamy, hetaerism and adultery, play an almost insignificant role here. the woman has practically regained the right of separation, and if a couple cannot agree, they rather separate. in short, the proletarian marriage is monogamous in the etymological sense of the word, but by no means in a historical sense. true, our jurists hold that the progress of legislation continually lessens all cause of complaint for women. the modern systems of civil law recognize, first that marriage, in order to be legal, must be a contract based on voluntary consent of both parties, and secondly that during marriage the relations of both parties shall be founded on equal rights and duties. these two demands logically enforced will, so they claim, give to women everything they could possibly ask. this genuinely juridical argumentation is exactly the same as that used by the radical republican bourgeois to cut short and dismiss the proletarian. the labor contract is said to be voluntarily made by both parties. but it is considered as voluntary when the law places both parties on equal terms on paper. the power conferred on one party by the division of classes, the pressure thereby exerted on the other party, the actual economic relation of the two--all this does not concern the law. again, during the term of the contract both parties are held to have equal rights, unless one has expressly renounced his right. that the economic situation forces the laborer to give up even the last semblance of equality, that is not the fault of the law. in regard to marriage, even the most advanced law is completely satisfied after both parties have formally declared their willingness. what passes behind the juridical scenes where the actual process of living is going on, and how this willingness is brought about, that cannot be the business of the law and the jurist. yet the simplest legal comparison should show to the jurist what this willingness really means. in those countries where a legitimate portion of the parental wealth is assured to children and where these cannot be disinherited--in germany, in countries with french law, etc.--the children are bound to secure the consent of their parents for marrying. in countries with english law, where the consent of the parents is by no means a legal qualification of marriage, the parents have full liberty to bequeath their wealth to anyone and may disinherit their children at will. hence it is clear that among classes having any property to bequeath the freedom to marry is not a particle greater in england and america than in france and germany. the legal equality of man and woman in marriage is by no means better founded. their legal inequality inherited from earlier stages of society is not the cause, but the effect of the economic oppression of women. in the ancient communistic household comprising many married couples and their children, the administration of the household entrusted to women was just as much a public function, a socially necessary industry, as the procuring of food by men. in the patriarchal and still more in the monogamous family this was changed. the administration of the household lost its public character. it was no longer a concern of society. it became a private service. the woman became the first servant of the house, excluded from participation in social production. only by the great industries of our time the access to social production was again opened for women--for proletarian women alone, however. this is done in such a manner that they remain excluded from public production and cannot earn anything, if they fulfill their duties in the private service of the family; or that they are unable to attend to their family duties, if they wish to participate in public industries and earn a living independently. as in the factory, so women are situated in all business departments up to the medical and legal professions. the modern monogamous family is founded on the open or disguised domestic slavery of women, and modern society is a mass composed of molecules in the form of monogamous families. in the great majority of cases the man has to earn a living and to support his family, at least among the possessing classes. he thereby obtains a superior position that has no need of any legal special privilege. in the family, he is the bourgeois, the woman represents the proletariat. in the industrial world, however, the specific character of the economic oppression weighing on the proletariat appears in its sharpest outlines only after all special privileges of the capitalist class are abolished and the full legal equality of both classes is established. a democratic republic does not abolish the distinction between the two classes. on the contrary, it offers the battleground on which this distinction can be fought out. likewise the peculiar character of man's rule over woman in the modern family, the necessity and the manner of accomplishing the real social equality of the two, will appear in broad daylight only then, when both of them will enjoy complete legal equality. it will then be seen that the emancipation of women is primarily dependent on the re-introduction of the whole female sex into the public industries. to accomplish this, the monogamous family must cease to be the industrial unit of society. * * * * * we have, then, three main forms of the family, corresponding in general to the three main stages of human development. for savagery group marriage, for barbarism the pairing family, for civilization monogamy supplemented by adultery and prostitution. between the pairing family and monogamy, in the higher stage of barbarism, the rule of men over female slaves and polygamy is inserted. as we proved by our whole argument, the progress visible in this chain of phenomena is connected with the peculiarity of more and more curtailing the sexual freedom of the group marriage for women, but not for men. and group marriage is actually practised by men to this day. what is considered a crime for women and entails grave legal and social consequences for them, is considered honorable for men or in the worst case a slight moral blemish born with pleasure. but the more traditional hetaerism is changed in our day by capitalistic production and conforms to it, the more hetaerism is transformed into undisguised prostitution, the more demoralizing are its effects. and it demoralizes men far more than women. prostitution does not degrade the whole female sex, but only the luckless women that become its victims, and even those not to the extent generally assumed. but it degrades the character of the entire male world. especially a long engagement is in nine cases out of ten a perfect training school of adultery. we are now approaching a social revolution, in which the old economic foundations of monogamy will disappear just as surely as those of its complement, prostitution. monogamy arose through the concentration of considerable wealth in one hand--a man's hand--and from the endeavor to bequeath this wealth to the children of this man to the exclusion of all others. this necessitated monogamy on the woman's, but not on the man's part. hence this monogamy of women in no way hindered open or secret polygamy of men. now, the impending social revolution will reduce this whole care of inheritance to a minimum by changing at least the overwhelming part of permanent and inheritable wealth--the means of production--into social property. since monogamy was caused by economic conditions, will it disappear when these causes are abolished? one might reply, not without reason: not only will it not disappear, but it will rather be perfectly realized. for with the transformation of the means of production into collective property, wage labor will also disappear, and with it the proletariat and the necessity for a certain, statistically ascertainable number of women to surrender for money. prostitution disappears and monogamy, instead of going out of existence, at last becomes a reality--for men also. at all events, the situation will be very much changed for men. but also that of women, and of all women, will be considerably altered. with the transformation of the means of production into collective property the monogamous family ceases to be the economic unit of society. the private household changes to a social industry. the care and education of children becomes a public matter. society cares equally well for all children, legal or illegal. this removes the care about the "consequences" which now forms the essential social factor--moral and economic--hindering a girl to surrender unconditionally to the beloved man. will not this be sufficient cause for a gradual rise of a more unconventional intercourse of the sexes and a more lenient public opinion regarding virgin honor and female shame? and finally, did we not see that in the modern world monogamy and prostitution, though antitheses, are inseparable and poles of the same social condition? can prostitution disappear without engulfing at the same time monogamy? here a new element becomes active, an element which at best existed only in the germ at the time when monogamy developed: individual sexlove. before the middle ages we cannot speak of individual sexlove. it goes without saying that personal beauty, intimate intercourse, harmony of inclinations, etc., awakened a longing for sexual intercourse in persons of different sex, and that it was not absolutely immaterial to men and women, with whom they entered into such most intimate intercourse. but from such a relation to our sexlove there is a long way yet. all through antiquity marriages were arranged for the participants by the parents, and the former quietly submitted. what little matrimonial love was known to antiquity was not subjective inclination, but objective duty; not cause, but corollary of marriage. love affairs in a modern sense occurred in classical times only outside of official society. the shepherds whose happiness and woe in love is sung by theocritos and moschus, such as daphnis and chloë of longos, all these were slaves who had no share in the state and in the daily sphere of the free citizen. outside of slave circles we find love affairs only as products of disintegration of the sinking old world. their objects are women who also are standing outside of official society, hetaerae that are either foreigners or liberated slaves: in athens since the beginning of its decline, in rome at the time of the emperors. if love affairs really occurred between free male and female citizens, it was only in the form of adultery. and to the classical love poet of antiquity, the old anakreon, sexlove in our sense was so immaterial, that he did not even care a fig for the sex of the beloved being. our sexlove is essentially different from the simple sexual craving, the eros, of the ancients. in the first place it presupposes mutual love. in this respect woman is the equal of man, while in the antique eros her permission is by no means always asked. in the second place our sexlove has such a degree of intensity and duration that in the eyes of both parties lack of possession and separation appear as a great, if not the greatest, calamity. in order to possess one another they play for high stakes, even to the point of risking their lives, a thing heard of only in adultery during the classical age. and finally a new moral standard is introduced for judging sexual intercourse. we not only ask: "was it legal or illegal?" but also: "was it caused by mutual love or not?" of course, this new standard meets with no better fate in feudal or bourgeois practice than all other moral standards--it is simply ignored. but neither does it fare worse. it is recognized just as much as the others--in theory, on paper. and that is all we can expect at present. where antiquity left off with its attempts at sexual love, there the middle ages resumed the thread: with adultery. we have already described the love of the knights that invented the day songs. from this love endeavoring to break through the bonds of marriage to the love destined to found marriage, there is a long distance which was never fully traversed by the knights. even in passing on from the frivolous romanic race to the virtuous germans, we find in the nibelungen song kriemhild, who secretly is no less in love with siegfried than he with her, meekly replying to gunther's announcement that he has pledged her in troth to a certain knight whom he does not name: "you need not beg for my consent; as you will demand, so i shall ever be; whomever you, sir, will select for my husband, i shall willingly take in troth." it does not enter her head at all that her love could find any consideration. gunther asks for brunhild, etzel for kriemhild without ever having seen one another. the same is true of the suit of gutrun sigebant of ireland for the norwegian ute and of hetel of hegelingen for hilda of ireland. when siegfried of morland, hartmut of oranien and herwig of sealand court gutrun, then it happens for the first time that the lady voluntarily decides, favoring the last named knight. as a rule the bride of the young prince is selected by his parents. only when the latter are no longer alive, he chooses his own bride with the advice of the great feudal lords who in all cases of this kind have a decisive voice. nor could it be otherwise. for the knight and the baron as well as for the ruler of the realm himself, marriage is a political act, an opportunity for increasing their power by new federations. the interest of the house must decide, not the arbitrary inclination of the individual. how could love have a chance to decide the question of marriage in the last instance under such conditions? the same held good for the bourgeois of the medieval towns, the members of the guilds. precisely the privileges protecting them, the clauses and restrictions of the guild charters, the artificial lines of division separating them legally, here from the other guilds, there from their journeymen and apprentices, drew a sufficiently narrow circle for the selection of a fitting bourgeois spouse. under such a complicated system, the question of fitness was unconditionally decided, not by individual inclination, but by family interests. in the overwhelming majority of cases the marriage contract thus remained to the end of the middle ages what it had been from the outset: a matter that was not decided by the parties most interested. in the beginning one was already married from his birth--married to a whole group of the other sex. in the later forms of group marriage, a similar relation was probably maintained, only under a continual narrowing of the group. in the pairing family it is the rule for mothers to exchange mutual pledges for the marriage of their children. here also the main consideration is given to new ties of relationship that will strengthen the position of the young couple in the gens and the tribe. and when with the preponderance of private property over collective property and with the interest for inheritance paternal law and monogamy assumed the supremacy, then marriage became still more dependent on economic considerations. the form of purchase marriage disappears, but the essence of the transaction is more and more intensified, so that not only the woman, but also the man have a fixed price--not according to his qualities, but to his wealth. that mutual fondness of the marrying parties should be the one factor dominating all others had always been unheard of in the practice of the ruling classes. such a thing occurred at best in romances or--among the oppressed classes that were not counted. this was the situation encountered by capitalist production when it began to prepare, since the epoch of geographical discoveries, for the conquest of the world by international trade and manufacture. one would think that this mode of making the marriage contract would have been extremely acceptable to capitalism, and it was. and yet--the irony of fate is inexplicable--capitalist production had to make the decisive breach through this mode. by changing all things into commodities, it dissolved all inherited and traditional relations and replaced time hallowed custom and historical right by purchase and sale, by the "free contract." and the english jurist, h. s. maine, thought he had made a stupendous discovery by saying that our whole progress over former epochs consisted in arriving from status to contract, from inherited to voluntarily contracted conditions. so far as this is correct, it had already been mentioned in the communist manifesto. but in order to make contracts, people must have full freedom over their persons, actions and possessions. they must furthermore be on terms of mutual equality. the creation of these "free" and "equal" people was precisely one of the main functions of capitalistic production. what though this was done at first in a half-conscious way and, moreover, in a religious disguise? since the lutheran and calvinist reformation the thesis was accepted that a human being is fully responsible for his actions only then, when these actions were due to full freedom of will. and it was held to be a moral duty to resist any compulsion for an immoral action. how did this agree with the prevailing practice of match-making? marriage according to bourgeois conception was a contract, a legal business affair, and the most important one at that, because it decided the weal and woe of body and spirit of two beings for life. at that time the agreement was formally voluntary; without the consent of the contracting parties nothing could be done. but it was only too well known how this consent was obtained and who were really the contracting parties. if, however, perfect freedom of decision is demanded for all other contracts, why not for this one? did not the two young people who were to be coupled together have the right freely to dispose of themselves, of their bodies and the organs of these? had not sexual love become the custom through the knights and was not, in opposition to knightly adultery, the love of married couples its proper bourgeois form? and if it was the duty of married couples to love one another, was it not just as much the duty of lovers to marry each other and nobody else? stood not the right of lovers higher than the right of parents, relatives and other customary marriage brokers and matrimonial agents? if the right of free personal investigation made its way unchecked into the church and religion, how could it bear with the insupportable claims of the older generation on the body, soul, property, happiness and misfortune of the younger generation? these questions had to be raised at a time when all the old ties of society were loosened and all traditional conceptions tottering. the size of the world had increased tenfold at a bound. instead of one quadrant of one hemisphere, the whole globe now spread before the eyes of west europeans who hastened to take possession of the other seven quadrants. and the thousand-year-old barriers of conventional medieval thought fell like the old narrow obstacles to marriage. an infinitely wider horizon opened out before the outer and inner eyes of humanity. what mattered the well-meaning propriety, what the honorable privilege of the guild overcome through generations to the young man tempted by the gold and silver mines of mexico and potosi? it was the knight errant time of the bourgeoisie. it had its own romances and love dreams, but on a bourgeois footing and, in the last instance, with bourgeois aims. thus it came about that the rising bourgeoisie more and more recognized the freedom of contracting in marriage and carried it through in the manner described above, especially in protestant countries, where existing institutions were most strongly shaken. marriage remained class marriage, but within the class a certain freedom of choice was accorded to the contracting parties. and on paper, in moral theory as in poetical description, nothing was more unalterably established than the idea that every marriage was immoral unless founded on mutual sex-love and perfectly free agreement of husband and wife. in short, the love match was proclaimed as a human right, not only as droit de l'homme--man's right--but also for once as droit de femme--woman's right. however, this human right differed from all other so-called human rights in one respect. while in practice other rights remained the privileges of the ruling class, the bourgeoisie, and were directly or indirectly curtailed for proletarians, the irony of history once more asserted itself in this case. the ruling class remains subject to well-known economic influences and, therefore, shows marriage by free selection only in exceptional cases. but among the oppressed class, love matches are the rule, as we have seen. hence the full freedom of marriage can become general only after all minor economic considerations, that still exert such a powerful influence on the choice of a mate for life, have been removed by the abolition of capitalistic production and of the property relations created by it. then no other motive will remain but mutual fondness. since sexlove is exclusive by its very nature--although this exclusiveness is at present realized for women alone--marriage founded on sexlove must be monogamous. we have seen that bachofen was perfectly right in regarding the progress from group marriage to monogamy mainly as the work of women. only the advance from the pairing family to monogamy must be charged to the account of men. this advance implied, historically, a deterioration in the position of women and a greater opportunity for men to be faithless. remove the economic considerations that now force women to submit to the customary disloyalty of men, and you will place women on a equal footing with men. all present experiences prove that this will tend much more strongly to make men truly monogamous, than to make women polyandrous. however, those peculiarities that were stamped upon the face of monogamy by its rise through property relations, will decidedly vanish, namely the supremacy of men and the indissolubility of marriage. the supremacy of man in marriage is simply the consequence of his economic superiority and will fall with the abolition of the latter. the indissolubility of marriage is partly the consequence of economic conditions, under which monogamy arose, partly tradition from the time where the connection between this economic situation and monogamy, not yet clearly understood, was carried to extremes by religion. to-day, it has been perforated a thousand times. if marriage founded on love is alone moral, then it follows that marriage is moral only as long as love lasts. the duration of an attack of individual sexlove varies considerably according to individual disposition, especially in men. a positive cessation of fondness or its replacement by a new passionate love makes a separation a blessing for both parties and for society. but humanity will be spared the useless wading through the mire of a divorce case. what we may anticipate about the adjustment of sexual relations after the impending downfall of capitalist production is mainly of a negative nature and mostly confined to elements that will disappear. but what will be added? that will be decided after a new generation has come to maturity: a race of men who never in their lives have had any occasion for buying with money or other economic means of power the surrender of a woman; a race of women who have never had any occasion for surrendering to any man for any other reason but love, or for refusing to surrender to their lover from fear of economic consequences. once such people are in the world, they will not give a moment's thought to what we to-day believe should be their course. they will follow their own practice and fashion their own public opinion about the individual practice of every person--only this and nothing more. but let us return to morgan from whom we moved away a considerable distance. the historical investigation of social institutions developed during the period of civilization exceeds the limits of his book. hence the vicissitudes of monogamy during this epoch occupy him very briefly. he also sees in the further development of the monogamous family a progress, an approach to perfect equality of the sexes, without considering this aim fully realized. but he says: "when the fact is accepted that the family has passed through four successive forms, and is now in a fifth, the question at once arises whether this form can be permanent in the future. the only answer that can be given is that it must advance as society advances, and change as society changes, even as it has done in the past. it is the creature of the social system, and will reflect its culture. as the monogamian family has improved greatly since the commencement of civilization, and very sensibly in modern times, it is at least supposable that it is capable of still farther improvement until the equality of the sexes is attained. should the monogamian family in the distant future fail to answer the requirements of society, assuming the continuous progress of civilization, it is impossible to predict the nature of its successor." footnotes: [7] author's note. how little bachofen understood what he had discovered, or rather guessed, is proved by the term "hetaerism," which he applies to this primeval stage. hetaerism designated among the greeks an intercourse of men, single or living in monogamy, with unmarried women. it always presupposes the existence of a well defined form of marriage, outside of which this intercourse takes place, and includes the possibility of prostitution. in another sense this word was never used, and i use it in this sense with morgan. bachofen's very important discoveries are everywhere mystified in the extreme by his idea that the historical relations of man and wife have their source in the religious conceptions of a certain period, not in the economic conditions of life. [8] translator's note. the female of the european cuckoo (cuculus canorus) keeps intercourse with several males in different districts during the same season. still, this is far from the human polyandry, in which the men and one women all live together in the same place, the men mutually tolerating one another, which male cuckoos do not. [9] westermarck, the history of human marriage, london, 1891. [10] espinas, des societes animales, 1877. [11] espinas, l. c., quoted by giraud-teulon, origines du mariage et de la famille, 1884, p. 518-20. [12] author's note. in the spring of 1882, marx expressed himself in the strongest terms on the total misrepresentation of primeval times by wagner's nibelungen text: "who ever heard of a brother embracing his sister as a bride?" to these lascivious wagnerian gods who in truly modern style are rendering their love quarrels more spicy by a little incest, marx replies: "in primeval times the sister was the wife and that was moral." (to the fourth edition.) a french friend and admirer of wagner does not consent to this foot note, and remarks that even in the oegisdrecka, the more ancient edda on which wagner built, loki denounces freya: "before the gods you embraced your own brother." this, he says, proves that marriage between brother and sister was interdicted even then. but the oegisdrecka is the expression of a time when the belief in the old myths was totally shaken; it is a truly lucian satire on the gods. if loki as mephisto denounces freya in this manner, then it is rather a point against wagner. loki also says, a few verses further on, to niordhr: "with your sister you generated (such) a son" ("vidh systur thinni gatzu slikan mog"). niordhr is not an asa, but a vana, and says in the ynglinga saga that marriages between brothers and sisters are sanctioned in vanaland, which is not the case among the asas. this would indicate that the vanas are older gods than the asas. at any rate niordhr lived on equal terms with the asas, and the oegisdrecka is thus rather a proof that at the time of the origin of the norwegian mythology the marriage of brother and sister was not yet repulsive, at least not to the gods. in trying to excuse wagner it might be better to quote goethe instead of the edda. this poet commits a similar error in his ballad of the god and the bajadere in regard to the religious surrender of women and approaches modern prostitution far too closely. [13] there is no longer any doubt that the traces of unrestricted sexual intercourse, which bachofen alleges to have found--called "incestuous generation" by him--are traceable to group marriage. if bachofen considers those punaluan marriages "lawless," a man of that period would look upon most of our present marriages between near and remote cousins on the father's or mother's side as incestuous, being marriages between consanguineous relatives.--marx. [14] the people of india. [15] see translator's note, p. 55. [16] translator's note. according to cunow, kroki and kumite are phratries. see "die verwandschaftsorganizationen der australneger," by heinrich cunow. stuttgart, dietz verlag, 1894. [17] translator's note. heinrich cunow has given us the results of his most recent investigations in his "verwandschaftsorganisationen der australneger." he sums up his studies in these words: "while morgan and fison regard the system of marriage classes as an original organization preceding the so-called punaluan family, i have found that the class is indeed older than the gens, having its origin in the different strata of generations characteristic of the "consanguine family" of morgan; but the present mode of classification in force among kamilaroi, kabi, yuipera, etc., cannot have arisen until a much later time, when the gentile institution had already grown out of the horde. this system of classification does not represent the first timid steps of evolution; it is not the most primitive of any known forms of social organization, but an intermediate form that takes shape together with the gentile society, a stage of transition to a pure gentile organization. in this stage, the generic classification in strata of different ages belonging to the so-called consanguine family runs parallel for a while with the gentile order.... it would have been easy for me to quote the testimony of travelers and ethnologists in support of the conclusions drawn by me from the forms of relationship among australian negroes. but i purposely refrain from doing this, with a few exceptions, first because i do not wish to write a general history of the primitive family, and, secondly, because i consider all references of this kind as very doubtful testimony, unless they are accompanied by an analysis of the entire organization. we frequently find analogies to the institutions of a lower stage in a high stage, and yet they are founded on radically different premises and causes. the evolution of the australian aborigines shows that. among the australians of the lower stage, e. g., the hordes are endogamous, among those of the middle stage they are exogamous, and in the higher stage they are again endogamous. but while in the one instance the marriage in the horde is conditioned on the fact that the more remote relatives are not yet excluded from sexual intercourse, it is founded in the other case on the difference between local and sexual organization. furthermore, the marriage between daughter and father is permitted in the lower stage, and again in that higher stage, where the class organization of the kamilaroi is on the verge of dissolution. but in both cases the circle of those who are regarded as fathers is entirely different. the character of an institution can only be perfectly understood, if we examine its connection with the entire organization, and, if possible, trace its metamorphoses in the preceding stages.... the characteristic feature of the class system is that by the side of the gentile order, such as is found among the north american indians, there is always another system of four marriage classes for the purpose of limiting sexual intercourse between certain groups of relatives. neither the phratry nor the gens of the kamilaroi forms a distinct territorial community. their members are scattered among different roving hordes, and they only meet occasionally, e. g., to celebrate a feast or dance.... the origin of gentile systems out of punaluan groups has never been proven, while we see among the australian negroes that the classes are clearly and irrefutably in existence among the first traces of gentilism.... the class system in its original form is a conclusive proof of morgan's theory, that the first step in the formation of systems of relationship consisted in prohibiting sexual intercourse between parents and children (in a wider sense).... it has been often disputed that the punaluan family ever existed outside of the sandwich islands. but the marriage institutions of certain australian tribes named by me prove the contrary. the pirrauru of the dieyerie is absolutely identical with the punalua of the hawaiians; and these institutions were not described by travelers who rushed through the territories of those tribes without knowing their language, but by men who lived among them for decades and fully mastered their dialects.... i have shown how far the class system corresponds to the hawaiian system. it is and remains a fact, that it contains a long series of terms that cannot be explained by the relations in the so-called consanguine family, and the use of which creates confusion, if applied to this family. but that simply shows that morgan was mistaken about the age and present structure of the hawaiian system. it does not prove that it could not have grown on the basis assumed by him.... if the opponents of morgan dispute that the so-called consanguine family is based on blood kinship, they are right, unless we wish to assign an exceptional position to the australian strata of generations. but if they go further and declare that the subsequent restrictions of inbreeding and the gentile order have arisen independently of relationships, they commit a far greater mistake than morgan. they block their way to an understanding of subsequent organizations and force themselves to all sorts of queer assumptions that at once appear as the fruits of imagination, when compared with the actual institutions of primitive peoples. this explanation of the phases of development of family institutions contradicts present day views on the matter. since the scientific investigations of the last decade have demonstrated beyond doubt that the so-called patriarchal family was preceded by the matriarchal family, it has become the custom to regard descent by females as a natural institution belonging to the very first stages of development which is explained by the modes of existence and thought among savages. paternity being a matter of speculation, maternity of actual observation, it is supposed to follow that descent by females was always recognized. but the development of the australian systems of relationship shows that this is not true, at least not in regard to australians. the fact cannot be disputed away, that we find female lineage among all those higher developed tribes that have progressed to the formation of gentile organizations, but male lineage among all those that have no gentile organizations or where these are only in process of formation. not a single tribe has been discovered so far, where female lineage was not combined with gentile organization, and i doubt that any will ever be found." [18] the history of human marriage, p. 28-29. [19] mutterrecht, p. xix. [20] a journey in brazil. boston and new york, 1886. page 266. [21] bancroft, native races, i., 81. [22] ibidem, p. 584. [23] morgan, ancient society, p. 504. chapter iii. the iroquois gens. we now come to another discovery of morgan that is at least as important as the reconstruction of the primeval form of the family from the systems of kinship. it is the proof that the sex organizations within the tribe of north american indians, designated by animal names, are essentially identical with the genea of the greeks and the gentes of the romans; that the american form is the original from which the greek and roman forms were later derived; that the whole organization of greek and roman society during primeval times in gens, phratry and tribe finds its faithful parallel in that of the american indians; that the gens is an institution common to all barbarians up to the time of civilization--at least so far as our present sources of information reach. this demonstration has cleared at a single stroke the most difficult passages of remotest ancient greek and roman history. at the same time it has given us unexpected information concerning the fundamental outlines of the constitution of society in primeval times--before the introduction of the state. simple as the matter is after we have once found it out, still it was only lately discovered by morgan. in his work of 1871 he had not yet unearthed this mystery. its revelation has completely silenced for the time being those generally so overconfident english authorities on primeval history. the latin word gens, used by morgan generally for the designation of this sex organization, is derived, like the equivalent greek word genos, from the common aryan root gan, signifying to beget. gens, genos, sanskrit dschanas, gothic kuni, ancient norse and anglesaxon kyn, english kin, middle high german künne, all signify lineage, descent. gens in latin, genos in greek, specially designate that sex organization which boasted of common descent (from a common sire) and was united into a separate community by certain social and religious institutions, but the origin and nature of which nevertheless remained obscure to all our historians. elsewhere, in speaking of the punaluan family, we saw how the gens was constituted in its original form. it consisted of all individuals who by means of the punaluan marriage and in conformity with the conceptions necessarily arising in it made up the recognized offspring of a certain ancestral mother, the founder of that gens. since fatherhood is uncertain in this form of the family, female lineage is alone valid. and as brothers must not marry their sisters, but only women of foreign descent, the children bred from these foreign women do not belong to the gens, according to maternal law. hence only the offspring of the daughters of every generation remain in the same sex organization. the descendants of the sons are transferred to the gentes of the new mothers. what becomes of this group of kinship when it constitutes itself a separate group, distinct from similar groups in the same tribe? as the classical form of this original gens morgan selects that of the iroquois, more especially that of the seneca tribe. this tribe has eight gentes named after animals: 1. wolf. 2. bear. 3. turtle. 4. beaver. 5. deer. 6. snipe. 7. heron. 8. hawk. every gens observes the following customs: 1. the gens elects its sachem (official head during peace) and its chief (leader in war). the sachem must be selected within the gens and his office was in a sense hereditary. it had to be filled immediately after a vacancy occurred. the chief could be selected outside of the gens, and his office could even be temporarily vacant. the son never followed his father in the office of sachem, because the iroquois observed maternal law, in consequence of which the son belonged to another gens. but the brother or the son of a sister was often elected as a successor. men and women both voted in elections. the election, however, had to be confirmed by the other seven gentes, and then only the sachem-elect was solemnly invested, by the common council of the whole iroquois federation. the significance of this will be seen later. the power of the sachem within the tribe was of a paternal, purely moral nature. he had no means of coercion at his command. he was besides by virtue of his office a member of the tribal council of the senecas and of the federal council of the whole iroquois nation. the chief had the right to command only in times of war. 2. the gens can retire the sachem and the chief at will. this again is done by men and women jointly. the retired men are considered simple warriors and private persons like all others. the tribal council, by the way, can also retire the sachems, even against the will of the tribe. 3. no member is permitted to marry within the gens. this is the fundamental rule of the gens, the tie that holds it together. it is the negative expression of the very positive blood relationship, by virtue of which the individuals belonging to it become a gens. by the discovery of this simple fact morgan for the first time revealed the nature of the gens. how little the gens had been understood before him is proven by former reports on savages and barbarians, in which the different organizations of which the gentile order is composed are jumbled together without understanding and distinction as tribe, clan, thum, etc. sometimes it is stated that intermarrying within these organizations is forbidden. this gave rise to the hopeless confusion, in which mclennan could pose as napoleon and establish order by the decree: all tribes are divided into those that forbid intermarrying (exogamous) and those that permit it (endogamous). and after he had thus made confusion worse confounded, he could indulge in deep meditations which of his two preposterous classes was the older: exogamy or endogamy. by the discovery of the gens founded on affinity of blood and the resulting impossibility of its members to intermarry, this nonsense found a natural end. it is self understood that the marriage interdict within the gens was strictly observed at the stage in which we find the iroquois. 4. the property of deceased members fell to the share of the other gentiles; it had to remain in the gens. in view of the insignificance of the objects an iroquois could leave behind, the nearest gentile relations divided the heritage. was the deceased a man, then his natural brothers, sisters and the brothers of the mother shared in his property. was it a woman, then her children and natural sisters shared, but not her brothers. for this reason husband and wife could not inherit from one another, nor the children from the father. 5. the gentile members owed to each other help, protection and especially assistance in revenging injury inflicted by strangers. the individual relied for his protection on the gens and could be assured of it. whoever injured the individual, injured the whole gens. from this blood kinship arose the obligation to blood revenge that was unconditionally recognized by the iroquois. if a stranger killed a gentile member, the whole gens of the slain man was pledged to revenge his death. first mediation was tried. the gens of the slayer deliberated and offered to the gentile council of the slain propositions for atonement, consisting generally in expressions of regret and presents of considerable value. if these were accepted, the matter was settled. in the opposite case the injured gens appointed one or more avengers who were obliged to pursue the slayer and to kill him. if they succeeded, the gens of the slayer had no right to complain. the account was squared. 6. the gens had certain distinct names or series of names, which no other gens in the whole tribe could use, so that the name of the individual indicated to what gens he belonged. a gentile name at the same time bestowed gentile rights. 7. the gens may adopt strangers who thereby are adopted into the whole tribe. the prisoners of war who were not killed became by adoption into a gens tribal members of the senecas and thus received full gentile and tribal rights. the adoption took place on the motion of some gentile members, of men who accepted the stranger as a brother or sister, of women who accepted him as a child. the solemn introduction into the gens was necessary to confirm the adoption. frequently certain gentes that had shrunk exceptionally were thus strengthened by mass adoptions from another gens with the consent of the latter. among the iroquois the solemn introduction into the gens took place in a public meeting of the tribal council, whereby it actually became a religious ceremony. the existence of special religious celebrations among indian gentes can hardly be demonstrated. but the religious rites of the indians are more or less connected with the gens. at the six annual religious festivals of the iroquois the sachems and chiefs of the different gentes were added to the "keepers of the faith" and had the functions of priests. 9. the gens had a common burial place. among the iroquois of the state of new york, who are crowded by white men all around them, the burial place has disappeared, but it existed formerly. among other indians it is still in existence, e. g., among the tuscaroras, near relatives of the iroquois, where every gens has a row by itself in the burial place, although they are christians. the mother is buried in the same row as her children, but not the father. and among the iroquois the whole gens of the deceased attends the funeral, prepares the grave and provides the addresses, etc. 10. the gens had a council, the democratic assembly of all male and female gentiles of adult age, all with equal suffrage. this council elected and deposed its sachems and chiefs; likewise the other "keepers of the faith." it deliberated on gifts of atonement or blood revenge for murdered gentiles and it adopted strangers into the gens. in short, it was the sovereign power in the gens. the following are the rights and privileges of the typical indian gens, according to morgan: "all the members of an iroquois gens were personally free, and they were bound to defend each other's freedom; they were equal in privileges and in personal rights, the sachems and chiefs claiming no superiority; and they were a brotherhood bound together by ties of kin. liberty, equality and fraternity, though never formulated, were cardinal principles of the gens. these facts are material, because the gens was the unit of a social and governmental system, the foundation upon which indian society was organized. a structure composed of such units would of necessity bear the impress of their character, for as the unit, so the compound. it serves to explain that sense of independence and personal dignity universally an attribute of indian character." at the time of the discovery the indians of entire north america were organized in gentes by maternal law. only "in some tribes, as among the dakotas, the gentes had fallen out; in others as among the ojibwas, the omahas and the mayas of yucatan, descent had been changed from the female to the male line." among many indian tribes with more than five or six gentes we find three, four or more gentes united into a separate group, called phratry by morgan in accurate translation of the indian name by its greek equivalent. thus the senecas have two phratries, the first comprising gentes one to four, the second gentes five to eight. closer investigation shows that these phratries generally represent the original gentes that formed the tribe in the beginning. for the marriage interdict necessitated the existence of at least two gentes in a tribe in order to realize its separate existence. as the tribe increased, every gens segmented into two or more new gentes, while the original gens comprising all the daughter gentes, lived on in the phratry. among the senecas and most of the other indians "the gentes in the same phratry are brother gentes to each other, and cousin gentes to those of the other phratry"--terms that have a very real and expressive meaning in the american system of kinship, as we have seen. originally no seneca was allowed to marry within his phratry, but this custom has long become obsolete and is now confined to the gens. according to the tradition among the senecas, the bear and the deer were the two original gentes, from which the others were formed by segmentation. after this new institution had become well established it was modified according to circumstances. if certain gentes became extinct, it sometimes happened that by mutual consent the members of one gens were transferred in a body from other phratries. hence we find the gentes of the same name differently grouped in the phratries of the different tribes. "the phratry, among the iroquois, was partly for social and partly for religious objects." 1. in the ball game one phratry plays against another. each one sends its best players, the other members, upon different sides of the field, watch the game and bet against one another on the result. 2. in the tribal council the sachems and chiefs of each phratry are seated opposite one another, every speaker addressing the representatives of each phratry as separate bodies. 3. when a murder had been committed in the tribe, the slayer and the slain belonging to different phratries, the injured gens often appealed to its brother gentes. these held a phratry council which in a body addressed itself to the other phratry, in order to prevail on the latter to assemble in council and effect a condonation of the matter. in this case the phratry re-appears in its original gentile capacity, and with a better prospect of success than the weaker gens, its daughter. 4. at the funeral of prominent persons the opposite phratry prepared the interment and the burial rites, while the phratry of the deceased attended the funeral as mourners. if a sachem died, the opposite phratry notified the central council of the iroquois that the office of the deceased had become vacant. 5. in electing a sachem the phratry council also came into action. endorsement by the brother gentes was generally considered a matter of fact, but the gentes of the other phratry might oppose. in such a case the council of this phratry met, and if it maintained its opposition, the election was null and void. 6. formerly the iroquois had special religious mysteries, called medicine lodges by the white men. these mysteries were celebrated among the senecas by two religious societies that had a special form of initiation for new members; each phratry was represented by one of these societies. 7. if, as is almost certain, the four lineages occupying the four quarters of tlascalá at the time of the conquest were four phratries, then it is proved that the phratries were at the same time military units, as were the greek phratries and similar sex organizations of the germans. each of these four lineages went into battle as a separate group with its special uniform and flag and its own leader. just as several genres form a phratry so in the classical form several phratries form a tribe. in some cases the middle group, the phratry, is missing in strongly decimated tribes. what constitutes an indian tribe in america? 1. a distinct territory and a distinct name. every tribe had a considerable hunting and fishing ground beside the place of its actual settlement. beyond this territory there was a wide neutral strip of land reaching over to the boundaries of the next tribe; a smaller strip between tribes of related languages, a larger between tribes of foreign languages. this corresponds to the boundary forest of the germans, the desert created by caesar's suevi around their territory, the isârnholt (danish jarnved, latin limei danicus) between danes and germans, the sachsen wald (saxon forest) and the slavish branibor between slavs and germans giving the province of brandenburg its name. the territory thus surrounded by neutral ground was the collective property of a certain tribe, recognized as such by other tribes and defended against the invasion of others. the disadvantage of undefined boundaries became of practical importance only after the population had increased considerably. the tribal names generally seem to be more the result of chance than of intentional selection. in course of time it frequently happened that a tribe designated a neighboring tribe by another name than that chosen by itself. in this manner the germans received their first historical name from the celts. 2. a distinct dialect peculiar to this tribe. as a matter of fact the tribe and the dialect are co-extensive. in america, the formation of new tribes and dialects by segmentation was in progress until quite recently, and doubtless it is still going on. where two weak tribes amalgamated into one, there it exceptionally happened that two closely related dialects were simultaneously spoken in the same tribe. the average strength of american tribes is less than 2,000 members. the cherokees, however, number about 26,000, the greatest number of indians in the united states speaking the same dialect. 3. the right to solemnly invest the sachems and chiefs elected by the gentes, and 4. the right to depose them, even against the will of the gens. as these sachems and chiefs are members of the tribal council, these rights of the tribe explain themselves. where a league of tribes had been formed and all the tribes were represented in a feudal council, the latter exercised these rights. 5. the possession of common religious conceptions (mythology) and rites. "after the fashion of barbarians the american indians were a religious people." their mythology has not yet been critically investigated. they materialized their religious conceptions--spirits of all sorts--in human shapes, but the lower stage of barbarism in which they lived, knows nothing as yet of so-called idols. it is a cult of nature and of the elements, in process of evolution to pantheism. the different tribes had regular festivals with prescribed forms of worship, mainly dances and games. especially dancing was an essential part of all religious celebrations. every tribe celebrated by itself. 6. a tribal council for public affairs. it was composed of all the sachems and chiefs of the different gentes, real representatives because they could be deposed at any moment. it deliberated in public, surrounded by the rest of the tribal members, who had a right to take part in the discussions and claim attention. the council decided. as a rule any one present gained a hearing on his demand. the women could also present their views by a speaker of their choice. among the iroquois the final resolution had to be passed unanimously, as was also the case in some resolutions of german mark (border) communities. it was the special duty of the tribal council to regulate the relations with foreign tribes. the council received and despatched legations, declared war and made peace. war was carried on principally by volunteers. "theoretically, each tribe was at war with every other tribe with which it had not formed a treaty of peace." expeditions against such enemies were generally organized by certain prominent warriors. they started a war dance, and whoever took part in it thereby declared his intention to join the expedition. ranks were formed and the march began immediately. the defense of the attacked tribal territory was also generally carried on by volunteers. the exodus and the return of such columns was always the occasion of public festivities. the consent of the tribal council for such expeditions was not required, and was neither asked nor given. this corresponds to the private war expeditions of german followers described by tacitus. only these german groups of followers had already assumed a more permanent character, forming a standing center organized during peace, around which the other volunteers gathered in case of war. such war columns were rarely strong in numbers. the most important expeditions of the indians, even for long distances, were undertaken by insignificant forces. if more than one group joined for a great expedition, every group obeyed its own leader. the uniformity of the campaign plan was secured as well as possible by a council of these leaders. this is the mode of warfare among the allemani in the fourth century on the upper rhine, as described by ammianus marcellinus. 7. in some tribes we find a head chief, whose power, however, is limited. he is one of the sachems who has to take provisional measures in cases requiring immediate action, until the council can assemble and decide. he represents a feeble, but generally undeveloped prototype of an official with executive power. the latter, as we shall see, developed in most cases out of the highest war chief. the great majority of american indians did not go beyond the league of tribes. with a few tribes of small membership, separated by wide boundary tracts, weakened by unceasing warfare, they occupied an immense territory. leagues were now and then formed by kindred tribes as the result of momentary necessity and dissolved again under more favorable conditions. but in certain districts, tribes of the same kin had again found their way out of disbandment into permanent federations, making the first step towards the formation of nations. in the united states we find the highest form of such a league among the iroquois. emigrating from their settlements west of the mississippi, where they probably formed a branch of the great dakota family, they settled at last after long wanderings in the present state of new york. they had five tribes: senecas, cayugas, onondagas, oneidas and mohawks. they lived on fish, venison, and the products of rough gardening, inhabiting villages protected by stockades. their number never exceeded 20,000, and certain gentes were common to all five tribes. they spoke closely related dialects of the same language and occupied territories contiguous to one another. as this land was won by conquest, it was natural for these tribes to stand together against the expelled former inhabitants. this led, not later than the beginning of the fifteenth century, to a regular "eternal league," a sworn alliance that immediately assumed an aggressive character, relying on its newly won strength. about 1675, at the summit of its power, it had conquered large districts round about and partly expelled the inhabitants, partly made them tributary. the iroquois league represented the most advanced social organization attained by indians that had not passed the lower stage of barbarism. this excludes only the mexicans, new mexicans and peruvians. the fundamental provisions of the league were: 1. eternal federation of the five consanguineous tribes on the basis of perfect equality and independence in all internal tribal matters. this consanguinity formed the true fundament of the league. three of these tribes, called father tribes, were brothers to one another; the other two, also mutual brothers, were called son tribes. the three oldest gentes were represented by living members in all five tribes, and these members were all regarded as brothers. three other gentes were still alive in three tribes, and all of their members called one another brothers. the common language, only modified by variations of dialect, was the expression and proof of their common descent. 2. the official organ of the league was a federal council of fifty sachems, all equal in rank and prominence. this council had the supreme decision in all federal matters. 3. on founding this league the fifty sachems had been assigned to the different tribes and gentes as holders of new offices created especially for federal purposes. vacancies were filled by new elections in the gens, and the holders of these offices could be deposed at will. but the right of installation belonged to the federal council. 4. these federal sachems were at the same time sachems of their tribe and had a seat and a vote in the tribal council. 5. all decisions of the federal council had to be unanimous. 6. the votes were cast by tribes, so that every tribe and the council members of each tribe had to vote together in order to adopt a final resolution. 7. any one of the five tribes could convoke the federal council, but the council could not convene itself. 8. federal meetings were held publicly in the presence of the assembled people. every iroquois could have the word, but the final decision rested with the council. 9. the league had no official head, no executive chief. 10. it had, however, two high chiefs of war, both with equal functions and power (the two "kings" of sparta, the two consuls of rome). this was the whole constitution, under which the iroquois lived over four hundred years and still live. i have described it more fully after morgan, because we have here an opportunity for studying the organization of a society that does not yet know a state. the state presupposes a public power of coërcion separated from the aggregate body of its members. maurer, with correct intuition, recognized the constitution of the german mark as a purely social institution, essentially different from that of a state, though furnishing the fundament on which a state constitution could be erected later on. hence in all of his writings, he traced the gradual rise of the public power of coërcion from and by the side of primordial constitutions of marks, villages, farms and towns. the north american indians show how an originally united tribe gradually spreads over an immense continent; how tribes by segmentation become nations, whole groups of tribes; how languages change so that they not only become unintelligible to one another, but also lose every trace of former unity; how at the same time one gens splits up into several gentes, how the old mother gentes are preserved in the phratries and how the names of these oldest gentes still remain the same in widely distant and long separated tribes. wolf and bear still are gentile names in a majority of all indian tribes. and the above named constitution is essentially applicable to all of them, except that many did not reach the point of forming leagues of related tribes. but once the gens was given as a social unit, we also see how the whole constitution of gentes, phratries and tribes developed with almost unavoidable necessity--because naturally--from the gens. all three of them are groups of differentiated consanguine relations. each is complete in itself, arranges its own local affairs and supplements the other groups. and the cycle of functions performed by them includes the aggregate of the public affairs of men in the lower stage of barbarism. wherever we find the gens as the social unit of a nation, we are justified in searching for a tribal organization similar to the one described above. and whenever sufficient material is at hand, as in greek and roman history, there we shall not only find such an organization, but we may also be assured, that the comparison with the american sex organizations will assist us in solving the most perplexing doubts and riddles in places where the material forsakes us. how wonderful this gentile constitution is in all its natural simplicity! no soldiers, gendarmes and policemen, no nobility, kings, regents, prefects or judges, no prisons, no lawsuits, and still affairs run smoothly. all quarrels and disputes are settled by the entire community involved in them, either the gens or the tribe or the various gentes among themselves. only in very rare cases the blood revenge is threatened as an extreme measure. our capital punishment is simply a civilized form of it, afflicted with all the advantages and drawbacks of civilization. not a vestige of our cumbersome and intricate system of administration is needed, although there are more public affairs to be settled than nowadays: the communistic household is shared by a number of families, the land belongs to the tribe, only the gardens are temporarily assigned to the households. the parties involved in a question settle it and in most cases the hundred-year-old traditions have settled everything beforehand. there cannot be any poor and destitute--the communistic households and the gentes know their duties toward the aged, sick and disabled. all are free and equal--the women included. there is no room yet for slaves, nor for the subjugation of foreign tribes. when about 1651 the iroquois had vanquished the eries and the "neutral nation," they offered to adopt them into the league on equal terms. only when the vanquished declined this offer they were driven out of their territory. what splendid men and women were produced by such a society! all the white men who came into contact with unspoiled indians admired the personal dignity, straightforwardness, strength of character and bravery of these barbarians. we lately received proofs of such bravery in africa. a few years ago the zulus, and some months ago the nubians, both of which tribes still retain the gentile organization, did what no european army can do. armed only with lances and spears, without any firearms, they advanced under a hail of bullets from breechloaders up to the bayonets of the english infantry--the best of the world for fighting in closed ranks--and threw them into confusion more than once, yea, even forced them to retreat in spite of the immense disparity of weapons, and in spite of the fact that they have no military service and don't know anything about drill. how enduring and able they are, is proved by the complaints of the english who admit that a kaffir can cover a longer distance in twenty-four hours than a horse. the smallest muscle springs forth, hard and tough like a whiplash, says an english painter. such was human society and its members, before the division into classes had taken place. and a comparison of that social condition with the condition of the overwhelming majority of present day society shows the enormous chasm that separates our proletarian and small farmer from the free gentile of old. that is one side of the question. we must not overlook, however, that this organization was doomed. it did not pass beyond the tribe. the league of tribes marked the beginning of its downfall, as we shall see, and as the attempts of the iroquois at subjugating others showed. whatever went beyond the tribe, went outside of gentilism. where no direct peace treaty existed, there war reigned from tribe to tribe. and this war was carried on with the particular cruelty that distinguishes man from other animals, and that was modified later on simply by self-interest. the gentile constitution in its most flourishing time, such as we saw it in america, presupposed a very undeveloped state of production, hence a population thinly scattered over a wide area. man was almost completely dominated by nature, a strange and incomprehensible riddle to him. his simple religious conceptions clearly reflect this. the tribe remained the boundary line for man, as well in regard to himself as to strangers outside. the gens, the tribe and their institutions were holy and inviolate. they were a superior power instituted by nature, and the feelings, thoughts and actions of the individual remained unconditionally subject to them. commanding as the people of this epoch appear to us, nothing distinguishes one from another. they are still attached, as marx has it, to the navel string of the primordial community. the power of these natural and spontaneous communities had to be broken, and it was. but it was done by influences that from the very beginning bear the mark of degradation, of a downfall from the simple moral grandeur of the old gentile society. the new system of classes is inaugurated by the meanest impulses: vulgar covetousness, brutal lust, sordid avarice, selfish robbery of common wealth. the old gentile society without classes is undermined and brought to fall by the most contemptible means: theft, violence, cunning, treason. and during all the thousands of years of its existence, the new society has never been anything else but the development of the small minority at the expense of the exploited and oppressed majority. more than ever this is true at present. chapter iv. the grecian gens. greeks, pelasgians and other nations of the same tribal origin were constituted since prehistoric times on the same systematic plan as the americans: gens, phratry, tribe, league of tribes. the phratry might be missing, as e. g. among the dorians; the league of tribes might not be fully developed in every case; but the gens was everywhere the unit. at the time of their entrance into history, the greeks were on the threshold of civilization. two full periods of evolution are stretching between the greeks and the above named american tribes. the greeks of the heroic age are by so much ahead of the iroquois. for this reason the grecian gens no longer retains the archaic character of the iroquois gens. the stamp of group marriage is becoming rather blurred. maternal law had given way to paternal lineage. rising private property had thus made its first opening in the gentile constitution. a second opening naturally followed the first: paternal law being now in force, the fortune of a wealthy heiress would have fallen to her husband in the case of her marriage. that would have meant the transfer of her wealth from her own gens to that of her husband. in order to avoid this, the fundament of gentile law was shattered. in such a case, the girl was not only permitted, but obliged to intermarry within the gens, in order to retain the wealth in the latter. according to grote's history of greece, the gens of attica was held together by the following bonds: 1. common religious rites and priests installed exclusively in honor of a certain divinity, the alleged gentile ancestor, who was designated by a special by-name in this capacity. 2. a common burial ground. (see demosthenes' eubulides.) 3. right of mutual inheritance. 4. obligation to mutually help, protect and assist one another in case of violence. 5. mutual right and duty to intermarry in the gens in certain cases, especially for orphaned girls or heiresses. 6. possession of common property, at least in some cases, and an archon (supervisor) and treasurer elected for this special case. the phratry united several gentes, but rather loosely. still we find in it similar rights and duties, especially common religious rites and the right of avenging the death of a phrator. again, all the phratries of a tribe had certain religious festivals in common that recurred at regular intervals and were celebrated under the guidance of a phylobasileus (tribal head) selected from the ranks of the nobles (eupatrides). so far grote. and marx adds: "the savage (e. g. the iroquois) is still plainly visible in the grecian gens." on further investigation we find additional proofs of this. for the grecian gens has also the following attributes: 7. paternal lineage. 8. prohibition of intermarrying in the gens except in the case of heiresses. this exception formulated as a law clearly proves the validity of the old rule. this is further substantiated by the universally accepted custom that a woman in marrying renounced the religious rites of her gens and accepted those of her husband's gens. she was also registered in his phratry. according to this custom and to a famous quotation in dikaearchos, marriage outside of the gens was the rule. becker in "charikles" directly assumes that nobody was permitted to intermarry in the gens. 9. the right to adopt strangers in the gens. it was exercised by adoption into the family under public formalities; but it was used sparingly. 10. the right to elect and depose the archons. we know that every gens had its archon. as to the heredity of the office, there is no reliable information. until the end of barbarism, the probability is always against strict heredity. for it is absolutely incompatible with conditions where rich and poor had perfectly equal rights in the gens. not alone grote, but also niebuhr, mommsen and all other historians of classical antiquity, were foiled by the gens. though they chronicled many of its distinguishing marks correctly, still they always regarded it as a group of families and thus prevented their understanding the nature and origin of gentes. under the gentile constitution, the family never was a unit of organization, nor could it be so, because man and wife necessarily belonged to two different gentes. the gens was wholly comprised in the phratry, the phratry in the tribe. but the family belonged half to the gens of the man, and half to that of the woman. nor does the state recognize the family in public law. to this day, the family has only a place in private law. yet all historical records take their departure from the absurd supposition, which was considered almost inviolate during the eighteenth century, that the monogamous family, an institution scarcely older than civilization, is the nucleus around which society and state gradually crystallized. "mr. grote will also please note," throws in marx, "that the gentes, which the greeks traced to their mythologies, are older than the mythologies. the latter together with their gods and demi-gods were created by the gentes." grote is quoted with preference by morgan as a prominent and quite trustworthy witness. he relates that every attic gens had a name derived from its alleged ancestor; that before solon's time, and even after, it was customary for the gentiles (gennêtes) to inherit the fortunes of their intestate deceased; and that in case of murder first the relatives of the victim had the duty and the right to prosecute the criminal, after them the gentiles and finally the phrators. "whatever we may learn about the oldest attic laws is founded on the organization in gentes and phratries." the descent of the gentes from common ancestors has caused the "schoolbred philistines," as marx has it, much worry. representing this descent as purely mythical, they are at a loss to explain how the gentes developed out of independent and wholly unrelated families. but this explanation must be given, if they wish to explain the existence of the gentes. they then turn around in a circle of meaningless gibberish and do not get beyond the phrase: the pedigree is indeed a fable, but the gens is a reality. grote finally winds up--the parenthetical remarks are by marx: "we rarely hear about this pedigree, because it is used in public only on certain very festive occasions. but the less prominent gentes had their common religious rites (very peculiar, mr. grote!) and their common superhuman ancestor and pedigree just like the more prominent gentes (how very peculiar this, mr. grote, in less prominent gentes!); and the ground plan and the ideal fundament (my dear sir! not ideal, but carnal, anglice "fleshly") was the same in all of them." marx sums up morgan's reply to this as follows: "the system of consanguinity corresponding to the archaic form of the gens--which the greeks once possessed like other mortals--preserved the knowledge of the mutual relation of all members of the gens. they learned this important fact by practice from early childhood. with the advent of the monogamous family this was gradually forgotten. the gentile name created a pedigree by the side of which that of the monogamous family seemed insignificant. this name had now the function of preserving the memory of the common descent of its bearers. but the pedigree of the gens went so far back that the gentiles could no longer actually ascertain their mutual kinship, except in a limited number of more recent common ancestors. the name itself was the proof of a common descent and sufficed always except in cases of adoption. to actually dispute all kinship between gentiles after the manner of grote and niebuhr, who thus transform the gens into a purely hypothetical and fictitious creation of the brain, is indeed worthy of "ideal" scientists, that is book worms. because the relation of the generations, especially on the advent of monogamy, is removed to the far distance, and the reality of the past seems reflected in phantastic imaginations, therefore the brave old philistines concluded and conclude that the imaginary pedigree created real gentes!" the phratry was, as among the americans, a mother-gens comprising several daughter gentes, and often traced them all to the same ancestor. according to grote "all contemporaneous members of the phratry of hekataeos were descendants in the sixteenth degree of one and the same divine ancestor." all the gentes of this phratry were therefore literally brother gentes. the phratry is mentioned by homer as a military unit in that famous passage where nestor advises agamemnon: "arrange the men by phratries and tribes so that phratry may assist phratry, and tribe the tribe." the phratry has the right and the duty to prosecute the death of a phrator, hence in former times the duty of blood revenge. it has, furthermore, common religious rites and festivals. as a matter of fact, the development of the entire grecian mythology from the traditional old aryan cult of nature was essentially due to the gentes and phratries and took place within them. the phratry had an official head (phratriarchos) and also, according to de coulanges, meetings and binding resolutions, a jurisdiction and administration. even the state of a later period, while ignoring the gens, left certain public functions to the phratry. the tribe consisted of several kindred phratries. in attica there were four tribes of three phratries each; the number of gentes in each phratry was thirty. such an accurate division of groups reveals the fact of a conscious and well-planned interference with the natural order. how, when and why this was done is not disclosed by grecian history. the historical memory of the greeks themselves does not reach beyond the heroic age. closely packed in a comparatively small territory as the greeks were, their dialectic differences were less conspicuous than those developed in the wide american forests. yet even here we find only tribes of the same main dialect united in a larger organization. little attica had its own dialect which later on became the prevailing language in grecian prose. in the epics of homer we generally find the greek tribes combined into small nations, but so that their gentes, phratries and tribes retained their full independence. they already lived in towns fortified by walls. the population increased with the growth of the herds, with agriculture and the beginnings of the handicrafts. at the same time the differences in wealth became more marked and gave rise to an aristocratic element within the old primordial democracy. the individual little nations carried on an unceasing warfare for the possession of the best land and also for the sake of looting. slavery of the prisoners of war was already well established. the constitution of these tribes and nations was as follows: 1. a permanent authority was the council (bule), originally composed of the gentile archons, but later on, when their number became too great, recruited by selection in such a way that the aristocratic element was developed and strengthened. dionysios openly speaks of the council at the time of the heroes as being composed of nobles (kratistoi). the council had the final decision in all important matters. in aeschylos, e. g. the council of thebes decides that the body of eteokles be buried with full honors, the body of polynikes, however, thrown out to be devoured by the dogs. with the rise of the state this council was transformed into the senate. 2. the public meeting (agora). we saw how the iroquois, men and women, attended the council meetings, taking an orderly part in the discussions and influencing them. among the homeric greeks, this attendance had developed to a complete public meeting. this was also the case with the germans of the archaic period. the meeting was called by the council. every man could demand the word. the final vote was taken by hand raising (aeschylos in "the suppliants," 607), or by acclamation. the decision of the meeting was supreme and final. "whenever a matter is discussed," says schoemann in "antiquities of greece," "which requires the participation of the people for its execution, homer does not indicate any means by which the people could be forced to it against their will." it is evident that at a time when every able-bodied member of the tribe was a warrior, there existed as yet no public power apart from the people that might have been used against them. the primordial democracy was still in full force, and by this standard the influence and position of the council and of the basileus must be judged. 3. the military chief (basileus). marx makes the following comment: "the european scientists, mostly born servants of princes, represent the basileus as a monarch in the modern sense. the yankee republican morgan objects to this. very ironically but truthfully he says of the oily gladstone and his "juventus mundi": 'mr. gladstone, who presents to his readers the grecian chiefs of the heroic age as kings and princes, with the superadded qualities of gentlemen, is forced to admit that, on the whole we seem to have the custom or law of primogeniture sufficiently, but not oversharply defined.' as a matter of fact, mr. gladstone himself must have perceived that a primogeniture resting on a clause of 'sufficient but not oversharp' definition is as bad as none at all." we saw how the law of heredity was applied to the offices of sachems and chiefs among the iroquois and other indians. all offices were subject to the vote of the gentiles and for this reason hereditary in the gens. a vacancy was filled preferably by the next gentile relative--the brother or the sister's son--unless good reasons existed for passing him. that in greece, under paternal law, the office of basileus was generally transmitted to the son or one of the sons, indicates only that the probability of succession by public election was in favor of the sons. it implies by no means a legal succession without a vote of the people. we here perceive simply the first rudiments of segregated families of aristocrats among iroquois and greeks, which led to a hereditary leadership or monarchy in greece. hence the facts are in favor of the opinion that among greeks the basileus was either elected by the people or at last was subject to the indorsement of their appointed organs, the council or agora, as was the case with the roman king (rex). in the iliad the ruler of men, agamemnon, does not appear as the supreme king of the greeks, but as general in chief of a federal army besieging a city. and when dissensions had broken out among the greeks, it is this quality which odysseus points out in a famous passage: "evil is the rule of the many; let one be the ruler, one the chief" (to which the popular verse about the scepter was added later on). odysseus does not lecture on the form of government, but demands obedience to the general in chief. considering that the greeks before troy appear only in the character of an army, the proceedings of the agora are sufficiently democratic. in referring to presents, that is the division of the spoils, achilles always leaves the division, not to agamemnon or some other basileus, but to the "sons of the achaeans," the people. the attributes, descendant of zeus, bred by zeus, do not prove anything, because every gens is descended from some god--the gens of the leader of the tribe from a "prominent" god, in this case zeus. even those who are without personal freedom, as the swineherd eumaeos and others, are "divine" (dioi or theioi), even in the odyssey, which belongs to a much later period than the iliad. in the same odyssey, the name of "heros" is given to the herald mulios as well as to the blind bard demodokos. in short, the word "basileia," with which the greek writers designate the so-called monarchy of homer (because the military leadership is its distinguishing mark, by the side of which the council and the agorâ are existing), means simply--military democracy (marx). the basileus had also sacerdotal and judiciary functions beside those of a military leader. the judiciary functions are not clearly defined, but the functions of priesthood are due to his position of chief representative of the tribe or of the league of tribes. there is never any mention of civil, administrative functions. but it seems that he was ex-officio a member of the council. the translation of basileus by king is etymologically quite correct, because king (kuning) is derived from kuni, künne, and signifies chief of a gens. but the modern meaning of the word king in no way designates the functions of the grecian basileus. thucydides expressly refers to the old basileia as patrikê, that is "derived from the gens," and states that it had well defined functions. and aristotle says that the basileia of heroic times was a leadership of free men and that the basileus was a military chief, a judge and a high priest. hence the basileus had no governmental power in a modern sense.[24] in the grecian constitution of heroic times, then, we still find the old gentilism fully alive, but we also perceive the beginnings of the elements that undermine it; paternal law and inheritance of property by the father's children, favoring accumulation of wealth in the family and giving to the latter a power apart from the gens; influence of the difference of wealth on the constitution by the formation of the first rudiments of hereditary nobility and monarchy; slavery, first limited to prisoners of war, but already paving the way to the enslavement of tribal and gentile associates; degeneration of the old feuds between tribes a regular mode of existing by systematic plundering on land and sea for the purpose of acquiring cattle, slaves, and treasures. in short, wealth is praised and respected as the highest treasure, and the old gentile institutions are abused in order to justify the forcible robbery of wealth. only one thing was missing: an institution that not only secured the newly acquired property of private individuals against the communistic traditions of the gens, that not only declared as sacred the formerly so despised private property and represented the protection of this sacred property as the highest purpose of human society, but that also stamped the gradually developing new forms of acquiring property, of constantly increasing wealth, with the universal sanction of society. an institution that lent the character of perpetuity not only to the newly rising division into classes, but also to the right of the possessing classes to exploit and rule the non-possessing classes. and this institution was found. the state arose. footnote: [24] author's note. just as the grecian basileus, so the aztec military chief was misrepresented as a modern prince. morgan was the first to submit to historical criticism the reports of the spaniards who first misapprehended and exaggerated, and later on consciously misrepresented the functions of this office. he showed that the mexicans were in the middle stage of barbarism, but on a higher plane than the new mexican pueblo indians, and that their constitution, so far as the garbled accounts show, corresponded to this stage: a league of three tribes which had made a number of others tributary and was administered by a federal council and a federal chief of war, whom the spaniards construed into an "emperor." chapter v. origin of the attic state. how the state gradually developed by partly transforming the organs of the gentile constitution, partly replacing them by new organs and finally installing real state authorities; how the place of the nation in arms defending itself through its gentes, phratries and tribes, was taken by an armed public power of coërcion in the hands of these authorities and available against the mass of the people; nowhere can we observe the first act of this drama so well as in ancient athens. the essential stages of the various transformations are outlined by morgan, but the analysis of the economic causes producing them is largely added by myself. in the heroic period, the four tribes of the athenians were still installed in separate parts of attica. even the twelve phratries composing them seem to have had separate seats in the twelve different towns of cecrops. the constitution was in harmony with the period: a public meeting (agorâ), a council (bûlê) and a basileus. as far back as we can trace written history we find the land divided up and in the possession of private individuals. for during the last period of the higher stage of barbarism the production of commodities and the resulting trade had well advanced. grain, wine and oil were staple articles. the sea trade on the aegean sea drifted more and more out of the hands of the phoenicians into those of the athenians. by the purchase and sale of land, by continued division of labor between agriculture and industry, trade and navigation, the members of gentes, phratries and tribes very soon intermingled. the districts of the phratry and the tribe received inhabitants who did not belong to these bodies and, therefore, were strangers in their own homes, although they were countrymen. for during times of peace, every phratry and every tribe administered its own affairs without consulting the council of athens or the basileus. but inhabitants not belonging to the phratry or the tribe could not take part in the administration of these bodies. thus the well-regulated functions of the gentile organs became so disarranged that relief was already needed during the heroic period. a constitution attributed to theseus was introduced. the main feature of this change was the institution of central administration in athens. a part of the affairs that had so long been conducted autonomously by the tribes was declared collective business and transferred to a general council in athens. this step of the athenians went farther than any ever taken by the nations of america. for the simple federation of autonomous tribes was now replaced by the conglomeration of all tribes into one single body. the next result was a common athenian law, standing above the legal traditions of the tribes and gentes. it bestowed on the citizens of athens certain privileges and legal protection, even in a territory that did not belong to their tribe. this meant another blow to the gentile constitution; for it opened the way to the admission of citizens who were not members of any attic tribe and stood entirely outside of the athenian gentile constitution. a second institution attributed to theseus was the division of the entire nation into three classes regardless of the gentes, phratries and tribes: eupatrides or nobles, geomoroì or farmers, and demiurgoi or tradesmen. the exclusive privilege of the nobles to fill the offices was included in this innovation. apart from this privilege the new division remained ineffective, as it did not create any legal distinctions between the classes. but it is important, because it shows us the new social elements that had developed in secret. it shows that the habitual holding of gentile offices by certain families had already developed into a practically uncontested privilege; that these families, already powerful through their wealth, began to combine outside of their gentes into a privileged class; and that the just arising state sanctioned this assumption. it shows furthermore that the division of labor between farmers and tradesmen had grown strong enough to contest the supremacy of the old gentile and tribal division of society. and finally it proclaims the irreconcilable opposition of gentile society to the state. the first attempt to form a state broke up the gentes by dividing their members against one another and opposing a privileged class to a class of disowned belonging to two different branches of production. the ensuing political history of athens up to the time of solon is only incompletely known. the office of basileus became obsolete. archons elected from the ranks of the nobility occupied the leading position in the state. the power of the nobility increased continually, until it became unbearable about the year 600 before christ. the principal means for stifling the liberty of the people were--money and usury. the main seat of the nobility was in and around athens. there the sea trade and now and then a little convenient piracy enriched them and concentrated the money into their hands. from this point the gradually arising money power penetrated like corrugating acid into the traditional modes of rural existence founded on natural economy. the gentile constitution is absolutely irreconcilable with money rule. the ruin of the attic farmers coïncided with the loosening of the old gentile bonds that protected them. the debtor's receipt and the pawning of the property--for the mortgage was also invented by the athenians--cared neither for the gens nor for the phratry. but the old gentile constitution knew nothing of money, advance and debt. hence the ever more virulently spreading money rule of the nobility developed a new legal custom, securing the creditor against the debtor and sanctioning the exploitation of the small farmer by the wealthy. all the rural districts of attica were crowded with mortgage columns bearing the legend that the lot on which they stood was mortgaged to such and such for so much. the fields that were not so designated had for the most part been sold on account of overdue mortgages or interest and transferred to the aristocratic usurers. the farmer could thank his stars, if he was granted permission to live as a tenant on one-sixth of the product of his labor and to pay five-sixths to his new master in the form of rent. worse still, if the sale of the lot did not bring sufficient returns to cover the debt, or if such a debt had been contracted without a lien, then the debtor had to sell his children into slavery abroad in order to satisfy the claim of the creditor. the sale of the children by the father--that was the first fruit of paternal law and monogamy! and if that did not satisfy the bloodsuckers, they could sell the debtor himself into slavery. such was the pleasant dawn of civilization among the people of attica. formerly, while the condition of the people was in keeping with gentile traditions, a similar downfall would have been impossible. but here it had come about, nobody knew how. let us return for a moment to the iroquois. the state of things that had imposed itself on the athenians almost without their doing, so to say, and assuredly against their will, was inconceivable among the indians. there the ever unchanging mode of production could at no time generate such conflicts as a distinction between rich and poor, exploiters and exploited, caused by external conditions. the iroquois were far from controlling the forces of nature, but within the limits drawn for them by nature they dominated their own production. apart from a failure of the crops in their little gardens, the exhaustion of the fish supply in their lakes and rivers or of the game stock in their forests, they always knew what would be the outcome of their mode of gaining a living. a more or less abundant supply of food, that would come of it. but the outcome could never be any unpremeditated social upheavals, breaking of gentile bonds or division of the gentiles against one another by conflicting class interests. production was carried on in the most limited manner; but--the producers controlled their own product. this immense advantage of barbarian production was lost in the transition to civilization. to win it back on the basis of man's present gigantic control of nature and of the free association rendered possible by it, that will be the task of the next generations. not so among the greeks. the advent of private property in herds of cattle and articles of luxury led to an exchange between individuals, to a transformation of products into commodities. here is the root of the entire revolution that followed. when the producers did no longer consume their own product, but released their hold of it in exchange for another's product, then they lost the control of it. they did not know any more what became of it. there was a possibility that the product might be turned against the producers for the purpose of exploiting and oppressing them. no society can, therefore, retain for any length of time the control of its own production and of the social effects of the mode of production, unless it abolishes exchange between individuals. how rapidly after the establishment of individual exchange and after the transformation of products into commodities the product manifests its rule over the producer, the athenians were soon to learn. along with the production of marketable commodities came the tilling of the soil by individual cultivators for their own account, soon followed by individual ownership of the land. along came also the money, that general commodity for which all others could be exchanged. but when men invented money they little suspected that they were creating a new social power, that one universal power before which the whole of society must bow down. it was this new power, suddenly sprung into existence without the forethought and intention of its own creators, that vented its rule on the athenians with the full brutality of youth. what was to be done? the old gentile organization had not only proved impotent against the triumphant march of money: it was also absolutely incapable of containing within its confines any such thing as money, creditors, debtors and forcible collection of debts. but the new social power was upon them and neither pious wishes nor a longing for the return of the good old times could drive money and usury from the face of the earth. moreover, gentile constitution had suffered a number of minor defeats. the indiscriminate mingling of the gentiles and phrators in the whole of attica, and especially in athens, had assumed larger proportions from generation to generation. still even now a citizen of athens was not allowed to sell his residence outside of his gens, although he could do so with plots of land. the division of labor between the different branches of production--agriculture, trades, numberless specialties within the trades, commerce, navigation, etc.--had developed more fully with the progress of industry and traffic. the population was now divided according to occupations into rather well defined groups, everyone of which had separate interests not guarded by the gens or phratry and therefore necessitating the creation of new offices. the number of slaves had increased considerably and must have surpassed by far that of the free athenians even at this early stage. gentile society originally knew no slavery and was, therefore, ignorant of any means to hold this mass of bondsmen in check. and finally, commerce had attracted a great many strangers who settled in athens for the sake of the easier living it afforded. according to the old constitution, the strangers had neither civil rights nor the protection of the law. though tacitly admitted by tradition, they remained a disturbing and foreign element. in short, gentile constitution approached its doom. society was daily growing more and more beyond it. it was powerless to stop or allay even the most distressing evils that had grown under its very eyes. but in the meantime the state had secretly developed. the new groups formed by division of labor, first between city and country, then between the various branches of city industry, had created new organs for the care of their interests. public offices of every description had been instituted. and above all the young state needed its own fighting forces. among the seafaring athenians this had to be at first only a navy, for occasional short expeditions and the protection of the merchant vessels. at some uncertain time before solon, the naukrariai were instituted, little territorial districts, twelve in each tribe. every naukraria had to furnish, equip and man a war vessel and to detail two horsemen. this arrangement was a twofold attack on the gentile constitution. in the first place it created a public power of coërcion that did no longer absolutely coincide with the entirety of the armed nation. in the second place it was the first division of the people for public purposes, not by groups of kinship, but by local residence. we shall soon see what that signified. as the gentile constitution could not come to the assistance of the exploited people, they could look only to the rising state. and the state brought help in the form of the constitution of solon. at the same time it added to its own strength at the expense of the old constitution. solon opened the series of so-called political revolutions by an infringement on private property. we pass over the means by which this reform was accomplished in the year 594 b. c. or thereabout. ever since, all revolutions have been revolutions for the protection of one kind of property against another kind of property. they cannot protect one kind without violating another. in the great french revolution the feudal property was sacrificed for the sake of saving bourgeois property. in solon's revolution, the property of the creditors had to make concessions to the property of the debtors. the debts were simply declared illegal. we are not acquainted with the accurate details, but solon boasts in his poëms that he removed the mortgage columns from the indented lots and enabled all who had fled or been sold abroad for debts to return home. this was only feasible by an open violation of private property. and indeed, all so-called political revolutions were started for the protection of one kind of property by the confiscation, also called theft, of another kind of property. it is absolutely true that for more than 2,500 years private property could only be protected by the violation of private property. but now a way had to be found to avoid the return of such an enslavement of the free athenians. this was first attempted by general measures, e. g., the prohibition of contracts giving the person of the debtor in lien. furthermore a maximum limit was fixed for the amount of land any one individual could own, in order to keep the craving of the nobility for the land of the farmers within reasonable bounds. constitutional amendments were next in order. the following deserve special consideration: the council was increased to four hundred members, one hundred from each tribe. here, then, the tribe still served as a basis. but this was the only remnant of the old constitution that was transferred to the new body politic. for otherwise solon divided the citizens into four classes according to their property in land and its yield. five hundred, three hundred and one hundred and fifty medimnoi of grain (1 medimnos equals 1.16 bushels) were the minimum yields of the first three classes. whoever had less land or none at all belonged to the fourth class. only members of the first three classes could hold office; the highest offices were filled by the first class. the fourth class had only the right to speak and vote in the public council. but here all officials were elected, here they had to give account, here all the laws were made, and here the fourth class was in the majority. the aristocratic privileges were partly renewed in the form of privileges of wealth, but the people retained the decisive power. the four classes also formed the basis for the reorganization of the fighting forces. the first two classes furnished the horsemen; the third had to serve as heavy infantry; the fourth was employed as light unarmored infantry and had to man the navy. probably the last class also received wages in this case. an entirely new element is thus introduced into the constitution: private property. the rights and duties of the citizens are graduated according to their property in land. wherever the classification by property gains ground, there the old groups of blood relationship give way. gentile constitution has suffered another defeat. however, the gradation of political rights according to private property was not one of those institutions without which a state cannot exist. it may have been ever so important in the constitutional development of some states. still a good many others, and the most completely developed at that, had no need of it. even in athens it played only a passing role. since the time of aristides, all offices were open to all the citizens. during the next eighty years the athenian society gradually drifted into the course on which it further developed in the following centuries. the outrageous land speculation of the time before solon had been fettered, likewise the excessive concentration of property in land. commerce, trades and artisan handicrafts, which were carried on in an ever larger scale as slave labor increased, became the ruling factors in gaining a living. public enlightenment advanced. instead of exploiting their own fellow citizens in the old brutal style, the athenians now exploited mainly the slaves and the customers outside. movable property, wealth in money, slaves and ships, increased more and more. but instead of being a simple means for the purchase of land, as in the old stupid times, it had now become an end in itself. the new class of industrial and commercial owners of wealth now waged a victorious competition against the old nobility. the remnants of the old gentile constitution lost their last hold. the gentes, phratries and tribes, the members of which now were dispersed all over attica and completely intermixed, had thus become unavailable as political groups. a great many citizens of athens did not belong to any gens. they were immigrants who had been adopted into citizenship, but not into any of the old groups of kinship. besides, there was a steadily increasing number of foreign immigrants who were only protected by traditional sufferance. meanwhile the struggles of the parties proceeded. the nobility tried to regain their former privileges and for a short time recovered their supremacy, until the revolution of kleisthenes (509 b. c.) brought their final downfall and completed the ruin of gentile law. in his new constitution, kleisthenes ignored the four old tribes founded on the gentes and phratries. their place was taken by an entirely new organization based on the recently attempted division of the citizens into naukrariai according to residence. no longer was membership in a group of kindred the dominant fact, but simply local residence. not the nation, but the territory was now divided; the inhabitants became mere political fixtures of the territory. the whole of attica was divided into one hundred communal districts, so-called demoi, every one of which was autonomous. the citizens living in a demos (demotoi) elected their official head (demarchos), treasurer and thirty judges with jurisdiction in minor cases. they also received their own temple and divine guardian or heros, whose priest they elected. the control of the demos was in the hands of the council of demotoì. this is, as morgan correctly remarks, the prototype of the autonomous american township. the modern state in its highest development ended in the same unit with which the rising state began its career in athens. ten of these units (demoi) formed a tribe, which, however, was now designated as local tribe in order to distinguish it from the old sex tribe. the local tribe was not only an autonomous political, but also a military group. it elected the phylarchos or tribal head who commanded the horsemen, the taxiarchos commanding the infantry and the strategic leader, who was in command of the entire contingent raised in the tribal territory by conscription. the local tribe furthermore furnished, equipped and fully manned five war vessels. it was designated by the name of the attic hero who was its guardian deity. it elected fifty councilmen into the council of athens. thus we arrive at the athenian state, governed by a council of five hundred elected by and representing the ten tribes and subject to the vote of the public meeting, where every citizen could enter and vote. archons and other officials attended to the different departments of administration and justice. by this new constitution and by the admission of a large number of aliens, partly freed slaves, partly immigrants, the organs of gentile constitution were displaced in public affairs. they became mere private and religious clubs. but their moral influence, the traditional conceptions and views of the old gentile period, survived for a long time and expired only gradually. this was evident in another state institution. we have seen that an essential mark of the state consists in a public power of coërcion divorced from the mass of the people. athens possessed at that time only a militia and a navy equipped and manned directly by the people. these afforded protection against external enemies and held the slaves in check, who at that time already made up the large majority of the population. for the citizens, this coërcive power at first only existed in the shape of the police, which is as old as the state. the innocent frenchmen of the 18th century, therefore, had the habit of speaking not of civilized, but of policed nations (nations policées). the athenians, then, provided for a police in their new state, a veritable "force" of bowmen on foot and horseback. this police force consisted--of slaves. the free athenian regarded this police duty as so degrading that he preferred being arrested by an armed slave rather than lending himself to such an ignominious service. that was still a sign of the old gentile spirit. the state could not exist without a police, but as yet it was too young and did not command sufficient moral respect to give prestige to an occupation that necessarily appeared ignominious to the old gentiles. how well this state, now completed in its main outlines, suited the social condition of the athenians was apparent by the rapid growth of wealth, commerce and industry. the distinction of classes on which the social and political institutions are resting was no longer between nobility and common people, but between slaves and freemen, aliens and citizens. at the time of the greatest prosperity the whole number of free athenian citizens, women and children included, amounted to about 90,000; the slaves of both sexes numbered 365,000 and the aliens--foreigners and freed slaves--45,000. per capita of each adult citizen there were, therefore, at least eighteen slaves and more than two aliens. the great number of slaves is explained by the fact that many of them worked together in large factories under supervision. the development of commerce and industry brought about an accumulation and concentration of wealth in a few hands. the mass of the free citizens were impoverished and had to face the choice of either competing with their own labor against slave labor, which was considered ignoble and vile, besides promising little success, or to be ruined. under the prevailing circumstances they necessarily chose the latter course and being in the majority they ruined the whole attic state. not democracy caused the downfall of athens, as the european glorifiers of princes and lickspittle schoolmasters would have us believe, but slavery ostracizing the labor of the free citizen. the origin of the state among the athenians presents a very typical form of state organization. for it took place without any marring external interference or internal obstruction--the usurpation of pisistratos left no trace of its short duration. it shows the direct rise of a highly developed form of a state, the democratic republic, out of gentile society. and finally, we are sufficiently acquainted with all the essential details of the process. chapter vi. gens and state in rome. the legend of the foundation of rome sets forth that the first colonization was undertaken by a number of latin gentes (one hundred, so the legend says) united into one tribe. a sabellian tribe (also said to consist of one hundred gentes) soon followed, and finally a third tribe of various elements, but again numbering one hundred gentes, joined them. the whole tale reveals at the first glance that little more than the gens was borrowed from reality, and that the gens itself was in certain cases only an offshoot of an old mother gens still existing at home. the tribes bear the mark of artificial composition on their foreheads; still they were made up of kindred elements and after the model of the old spontaneous, not artificial tribe. at the same time it is not impossible that a genuine old tribe formed the nucleus of every one of these three tribes. the connecting link, the phratry, contained ten gentes and was called curia. hence there were thirty curiae. the roman gens is recognized as an institution identical with the grecian gens. the grecian gens being a continuation of the same social unit, the primordial form of which we found among the american indians, the same holds naturally good of the roman gens, and we can be more concise in its treatment. at least during the most ancient times of the city, the roman gens had the following constitution: 1. mutual right of inheritance for gentiles; the wealth remained in the gens. paternal law being already in force in the roman the same as in the grecian gens, the offspring of female lineage were excluded. according to the law of the twelve tablets, the oldest written law of rome known to us, the natural children had the first title to the estate; in case no natural children existed, the agnati (kin of male lineage) took their place; and last in line came the gentiles. in all cases the property remained in the gens. here we observe the gradual introduction of new legal provisions, caused by increased wealth and monogamy, into the gentile practice. the originally equal right of inheritance of the gentiles was first limited in practice to the agnati, no doubt at a very remote date, and afterwards to the natural children and their offspring of male lineage. of course this appears in the reverse order on the twelve tablets. 2. possession of a common burial ground. the patrician gens claudia, on immigrating into rome from regilli, was assigned to a separate lot of land and received its own burial ground in the city. as late as the time of augustus, the head of varus, who had been killed in the teutoburger wald, was brought to rome and interred in the gentilitius tumulus; hence his gens (quinctilia) still had its own tomb. 3. common religious rites. these are well-known under the name of sacra gentilitia. 4. obligation not to intermarry in the gens. it seems that this was never a written law in rome, but the custom remained. among the innumerable names of roman couples preserved for us there is not a single case, where husband and wife had the same gentile name. the law of inheritance proves the same rule. by marrying, a woman loses her agnatic privileges, discards her gens, and neither she nor her children have any title to her father's estate nor to that of his brothers, because otherwise the gens of her father would lose his property. this rule has a meaning only then when the woman is not permitted to marry a gentile. 5. a common piece of land. in primeval days this was always obtained when the tribal territory was first divided. among the latin tribes we find the land partly in the possession of the tribe, partly of the gens, and partly of the households that could hardly represent single families at such an early date. romulus is credited with being the first to assign land to single individuals, about 2.47 acres (two jugera) per head. but later on we still find some land in the hands of the gentes, not to mention the state land, around which turns the whole internal history of the republic. 6. duty of the gentiles to mutually protect and assist one another. written history records only remnants of this law. the roman state from the outset manifested such superior power, that the duty of protection against injury devolved upon it. when appius claudius was arrested, his whole gens, including his personal enemies, dressed in mourning. at the time of the second punic war the gentes united for the purpose of ransoming their captured gentiles. the senate vetoed this. 7. right to bear the gentile name. this was in force until the time of the emperors. freed slaves were permitted to assume the gentile name of their former master, but this did not bestow any gentile rights on them. 8. right of adopting strangers into the gens. this was done by adoption into the family (the same as among the indians) which brought with it the adoption into the gens. 9. the right to elect and depose chiefs is not mentioned anywhere. but inasmuch as during the first years of rome's existence all offices were filled by election or nomination, from the king downward, and as the curiae elected also their own priests, we are justified in assuming the same in regard to gentile chiefs (principes)--no matter how well established the rule of choosing the candidates from the same family have been. such were the constitutional rights of a roman gens. with the exception of the completed transition to paternal law, they are the true image of the rights and duties of an iroquois gens. here, also, "the iroquois is still plainly visible." how confused the ideas of our historians, even the most prominent of them, are when it comes to a discussion of the roman gens, is shown by the following example: in mommsen's treatise on the roman family names of the republican and augustinian era (römische forschungen, berlin, 1864, vol. i.) he writes: "the gentile name was not only borne by all male gentiles including all adopted and wards, except, of course, the slaves, but also by the women.... the tribe (so mommsen translates gens) is a common organization resulting from a common--actual, assumed or even invented--ancestor and united by common rites, burial grounds and customs of inheritance. all free individuals, hence women also, may and must claim membership in them. but the definition of the gentile name of the married women offers some difficulty. this is indeed obviated, as long as women were not permitted to marry any one but their gentiles. and we have proofs that for a long time the women found it much more difficult to marry outside than inside of the gens. this right of marrying outside, the gentis enuptio, was still bestowed as a personal privilege and reward during the sixth century.... but wherever such outside marriages occurred in primeval times, the woman must have been transferred to the tribe of her husband. nothing is more certain than that by the old religious marriage woman was completely adopted into the legal and sacramental group of her husband and divorced from her own. who does not know that the married woman releases her active and passive right of inheritance in favor of her gentiles, but enters the legal group of her husband, her children and his gentiles? and if her husband adopts her as his child into his family, how can she remain separated from his gens?" (pages 9-11.) here mommsen asserts that the roman women belonging to a certain gens were originally free to marry only within their gens; the roman gens, according to him, was therefore endogamous, not exogamous. this opinion which contradicts the evidence of all other nations, is principally, if not exclusively, founded on a single much disputed passage of livy (book xxxix, c. 19). according to this passage, the senate decreed in the year 568 of the city, i. e., 186 b. c., (uti feceniae hispallae datió, deminutio, gentis enuptio, tutoris optio idem esset quasi ei vir testamento dedisset; utique ei ingenuo nubere liceret, neu quid ei qui eam duxisset, ob id fraudi ignominiaeve esset)--that fecenia hispalla shall have the right to dispose of her property, to diminish it, to marry outside of the gens, to choose a guardian, just as if her (late) husband had conferred this right on her by testament; that she shall be permitted to marry a freeman and that for the man who marries her this shall not constitute a misdemeanor or a shame. without a doubt fecenia, a freed slave, here obtains permission to marry outside of the gens. and equally doubtless the husband here has the right to confer on his wife by testament the right to marry outside of the gens after his death. but outside of which gens? if a woman had to intermarry in the gens, as mommsen assumes, then she remained in this gens after her marriage. but in the first place, this assertion of an endogamous gens must be proven. and in the second place, if the women had to intermarry in the gens, then the men had to do the same, otherwise there could be no marriage. then we arrive at the conclusion that the man could bequeath a right to his wife, which he did not have for himself. this is a legal impossibility. mommsen feels this very well, and hence he supposes: "the marriage outside of the gens most probably required not only the consent of the testator, but of all gentiles." (page 10, footnote.) this is not only a very daring assertion, but contradicts also the clear wording of the passage. the senate gives her this right as a proxy of her husband; they expressly give her no more and no less than her husband could have given her, but what they do give is an absolute right, independent of all limitations, so that, if she should make use of it, her new husband shall not suffer in consequence. the senate even instructs the present and future consuls and praetors to see that no inconvenience arise to her from the use of this right. mommsen's supposition is therefore absolutely inadmissible. then again: suppose a woman married a man from another gens, but remained in her own gens. according to the passage quoted above, her husband would then have had the right to permit his wife to marry outside of her own gens. that is, he would have had the right to make provisions in regard to the affairs of a gens to which he did not belong at all. the thing is so utterly unreasonable that we need not lose any words about it. nothing remains but to assume that the woman in her first marriage wedded a man from another gens and thereby became a member of her husband's gens. mommsen admits this for such cases. then the whole matter at once explains itself. the woman, torn away from her old gens by her marriage and adopted into the gentile group of her husband, occupies a peculiar position in the new gens. she is now a gentile, but not a kin by blood. the manner of her entrance from the outset excludes all prohibition of intermarrying in the gens, into which she has come by marriage. she is adopted into the family relations of the gens and inherits some of the property of her husband when he dies, the property of a gentile. what is more natural than that this property should remain in the gens and that she should be obliged to marry a gentile of her husband and no other? if, however, an exception is to be made, who is so well entitled to authorize her as her first husband who bequeathed his property to her? at the moment when he bequeathes on her a part of his property and simultaneously gives her permission to transfer this property by marriage or as a result of marriage to a strange gens, he still is the owner of this property, hence he literally disposes of his personal property. as for the woman and her relation to the gens of her husband, it is he who by an act of his own free will--the marriage--introduced her into his gens. therefore it seems quite natural that he should be the proper person to authorize her to leave this gens by another marriage. in short, the matter appears simple and obvious, as soon as we discard the absurd conception of an endogamous roman gens and accept morgan's originally exogamous gens. there is still another view which has probably found the greatest number of advocates. according to them the passage in livy only means "that freed slave girls (libertae) cannot without special permission, e gente enubere (marry outside of the gens) or undertake any of the steps which, together with capitis deminutio minima[25] (the loss of family rights) would lead to a transfer of the liberta to another gens." (lange, römische alterthümer, berlin, 1856, i, p. 185, where our passage from livy is explained by a reference to huschke.) if this view is correct, then the passage proves still less for the relations of free roman women, and there is so much less ground for speaking of their obligation to intermarry in the gens. the expression enuptio gentis (marriage outside of the gens) occurs only in this single passage and is not found anywhere else in the entire roman literature. the word enubere (to marry outside) is found only three times likewise in livy, and not in reference to the gens. the phantastic idea that roman women had to intermarry in the gens owes its existence only to this single passage. but it cannot be maintained. for either the passage refers to special restrictions for freed slave women, in which case it proves nothing for free women (ingenuae). or it applies also to free women, in which case it rather proves that the women as a rule married outside of the gens and were transferred by their marriage to their husbands' gens. this would be a point for morgan against mommsen. almost three hundred years after the foundation of rome the gentile bonds were still so strong that a patrician gens, the fabians, could obtain permission from the senate to undertake all by itself a war expedition against the neighboring town of veii. three hundred and six fabians are said to have marched and to have been killed from ambush. only one boy was left behind to propagate the gens. ten gentes, we said, formed a phratry, named curia. it was endowed with more important functions than the grecian phratry. every curia had its own religious rites, sacred possessions and priests. the priests of one curia in a body formed one of the roman clerical collegiums. ten curiae formed a tribe which probably had originally its own elected chief--leader in war and high priest--like the rest of the latin tribes. the three tribes together formed the populus romanus, the roman people. hence nobody could belong to the roman people, unless he was a member of a roman gens, and thus a member of a curia and tribe. the first constitution of the roman people was as follows. public affairs were conducted by the senate composed, as niebuhr was the first to state correctly, of the chiefs of the three hundred gentes. because they were the elders of the gentes they were called patres, fathers, and as a body senatus, council of elders, from senex, old. here also the customary choice of men from the same family of the gens brought to life the first hereditary nobility. these families were called patricians and claimed the exclusive right to the seats in the senate and to all other offices. the fact that in the course of time the people admitted this claim so that it became an actual privilege is confirmed by the legendary report that romulus bestowed the rank of patrician and its privileges on the first senators. the senate, like the athenian boulê, had to make the final decision in many affairs and to undertake the preliminary discussion of more important matters, especially of new laws. these were settled by the public meeting, the so-called comitia curiata (assembly of curiae.) the people met in curiae, probably grouped by gentes, and every one of the thirty curiae had one vote. the assembly of curiae adopted or rejected all laws, elected all higher officials including the rex (so-called king), declared war (but the senate concluded peace), and decided as a supreme court, on appeal, all cases involving capital punishment of roman citizens. by the side of the senate and the public meeting stood the rex, corresponding to the grecian basileus, and by no means, such an almost absolute king as mommsen would have it.[26] the rex was also a military leader, a high priest and a chairman of certain courts. he had no other functions, nor any power over life, liberty and property of the citizens, except such as resulted from his disciplinary power as military leader or from his executive power as president of a court. the office of rex was not hereditary. on the contrary, he was elected, probably on the suggestion of his predecessor, by the assembly of curiae and then solemnly invested by a second assembly. that he could also be deposed is proved by the fate of tarquinius superbus. as the greeks at the time of the heroes, so the romans at the time of the so-called kings lived in a military democracy based on and developed from a constitution of gentes, phratries and tribes. what though the curiae and tribes were partly artificial formations, they were moulded after the genuine and spontaneous models of a society from which they originated and that still surrounded them on all sides. and though the sturdy patrician nobility had already gained ground, though the reges attempted gradually to enlarge the scope of their functions--all this does not change the elementary and fundamental character of the constitution, and this alone is essential. meantime the population of the city of rome and of the roman territory, enlarged by conquest, increased partly by immigration, partly through the inhabitants of the annexed districts, latins most of them. all these new members of the state (we disregard here the clients) stood outside of the old gentes, curiae and tribes and so did not form a part of the populus romanus, the roman people proper. they were personally free, could own land, had to pay taxes and were subject to military service. but they were not eligible to office and could neither take part in the assembly of curiae nor in the distribution of conquered state lands. they made up the mass of people excluded from all public rights, the plebs. by their continually growing numbers, their military training and armament they became a threat for the old populus who now closed their ranks hermetically against all new elements. the land seems to have been about evenly divided between populus and plebs, while the mercantile and industrial wealth, though as yet not very considerable, may have been mainly in the hands of the plebs. in view of the utter darkness that enwraps the whole legendary origin of rome's historical beginning--a darkness that was rendered still more intense by the rationalistic and overofficious interpretations and reports of the juristically trained authors that wrote on the subject--it is impossible to make any definite statements about the time, the course and the motive of the revolution that put an end to the old gentile constitution. we are certain only that the causes arose out of the fights between the plebs and the populus. the new constitution, attributed to rex servius tullius and following the grecian model, more especially that of solon, created a new public assembly including or excluding all the members of populus and plebs according to whether they rendered military service or not. the whole population, subject to enlistment, was divided into six classes according to wealth. the lowest limitis in the five highest classes were: i., 100,000 ass; ii., 75,000; iii., 50,000; iv., 25,000; v., 11,000; which according to dureau de la malle is equal to about $3,155, $2,333, $1,555, $800, and $388. the sixth class, the proletarians, consisted of those who possessed less and were exempt from military service and taxes. in this new assembly of centuriae (comitia centuriata) the citizens formed ranks after the manner of soldiers, in companies of one hundred (centuria), and every centuria had one vote. now the first class placed 80 centuriae in the field; the second 22, the third 20, the fourth 22, the fifth 30 and the sixth, for propriety's sake, one. to this were added 18 centuriae of horsemen composed of the most wealthy. hence, there were 193 centuriae, giving a lowest majority vote of 97. now the horsemen and the first class alone had together 98 votes. being in the majority, they had only to agree, and they could pass any resolution without asking the consent of the other classes. this new assembly of centuriae assumed all the political rights of the former assembly of curiae, a few nominal privileges excepted. the curiae and the gentes composing them now were degraded to mere private and religious congregations, analogous to their attic prototypes, and as such they vegetated on for a long time. but the assembly of curiae soon became obsolete. in order to drive also the three old tribes out of existence, a system of four local tribes was introduced. every tribe was assigned to one quarter of the city and received certain political rights. thus the old social order of blood kinship was destroyed also in rome even before the abolition of the so-called royalty. a new constitution, founded on territorial division and difference of wealth took its place and virtually created the state. the public power of coërcion consisted here of citizens liable to military duty, to be used against the slaves and the so-called proletarians who were excluded from military service and general armament. after the expulsion of the last rex, tarquinius superbus, who had really usurped royal power, the new constitution was further improved by the institution of two military leaders (consuls) with equal powers, analogous to the custom of the iroquois. the whole history of the roman republic moves inside of this constitution: the struggles between patricians and plebs for admission to office and participation in the allotment of state lands, the merging of the patrician nobility in the new class of large property and money owners; the gradual absorption by the latter of all the land of the small holders who had been ruined by military service; the cultivation of these enormous new tracts by slaves; the resulting depopulation of italy which not only opened the doors to the imperial tyrants, but also to their successors, the german barbarians. footnotes: [25] translator's note. the term caput received the meaning of legal right of a person from the legal status of the head of a family.... legal science extended the meaning of the term so that it related not alone to slaves, but also to minors and women. this legal right, so conceived, could be curtailed in three ways: capitis deminutio maxima was the loss of the status libertatis (personal liberty), which included the loss of the status civitatis and familiae (civil and family rights); the capitis deminutio minor or media was the loss of the status civitatis (civil rights), including the loss of the status familiae (family rights); the capitis deminutio minima was the loss of the status familiae (family rights). lange, römische alterthümer, berlin, 1876, vol. i., p. 204. [26] author's note. the latin rex is equivalent to the celtic-irish righ (tribal chief) and the gothic reiks. that this, like the german fürst, english first and danish forste, originally signified gentile or tribal chief is evident from the fact that the goths in the fourth century already had a special term for the king of later times, the military chief of a whole nation, viz., thiudans. in ulfila's translation of the bible artaxerxes and herod are never called reiks, but thiudans, and the empire of the emperor tiberius not reiki, but thiudinassus. in the name of the gothic thiudans, or king as we inaccurately translate, thiudareiks (theodoric, german dietrich), both names flow together. chapter vii. the gens among celts and germans. space forbids a consideration of the gentile institutions found in a more or less pure form among the savage and barbarian races of the present day; or of the traces of such institutions, discovered in the ancient history of civilized nations in asia. one or the other are met everywhere. a few illustrations may suffice: even before the gens had been recognized, it was pointed out and accurately described in its main outlines by the man who took the greatest pains to misunderstand it, mclennan, who wrote of this institution among the kalmucks, the circassians, the samoyeds and three indian nations: the warals, the magars and the munnipurs. recently it was described by m. kovalevsky, who discovered it among the pshavs, shevsurs, svanets and other caucasian tribes. a few short notes about the existence of the gens among celts and germans may find a place here. the oldest celtic laws preserved for us still show the gens in full bloom. in ireland, it is alive in the popular instinct to this day, after it has been forced out of actual existence by the english. it was in full force in scotland until the middle of the eighteenth century, and here it also succumbed only to the weapons, laws and courts of the english. the old welsh laws, written several centuries before the english invasion, not later than the 11th century, still show collective agriculture of whole villages, although only exceptionally and as the survival of a former universal custom. every family had five acres for its special use; another lot was at the same time cultivated collectively and its yield divided among the different families. in view of irish and scotch analogies it cannot be doubted that these village communities represent gentes or subdivisions of gentes, even though a repeated investigation of the welsh laws, which i cannot undertake from lack of time (my notes are from 1869), should not directly corroborate this. one thing, however, is plainly proven by the welsh and irish laws, namely that the pairing family had not yet given way to monogamy among the celts of the 11th century. in wales, marriage did not become indissoluble by divorce, or rather by notification, until after seven years. even if no more than three nights were lacking to make up the seven years, a married couple could still separate. their property was divided among them: the woman made the division, the man selected his share. the furniture was divided according to certain very funny rules. if the marriage was dissolved by the man, he had to return the woman's dowry and a few other articles; if the woman wished a separation, then she received less. of three children the man took two, the woman one, viz., the second child. if the woman married again after her divorce, and her first husband claimed her back, she was obliged to follow him, even if she had one foot in her new husband's bed. but if two had lived together for seven years, they were considered man and wife, even without the preliminaries of a formal marriage. chasteness of the girls before marriage was by no means strictly observed, nor was it required. the regulations regarding this subject are of an extremely frivolous nature and in contradiction with civilized morals. when a woman committed adultery, her husband had a right to beat her--this was one of three cases when he could do so without incurring a penalty--but after that he could not demand any other satisfaction, for "the same crime shall either be atoned for or avenged, but not both." the reasons that entitled a woman to a divorce without curtailing her claims to a fair settlement were of a very diverse nature: bad breath of the man was sufficient. the ransom to be paid to the chief or king for the right of the first night (gobr merch, hence the medieval name marcheta, french marquette) plays a conspicuous part in the code of laws. the women had the right to vote in the public meetings. add to this that similar conditions are vouched for in ireland; that marriage on time was also quite the custom there, and that the women were assured of liberal and well defined privileges in case of divorce, even to the point of remuneration for domestic services; that a "first wife" existed by the side of others, and that legal and illegal children without distinction received a share of their deceased parent's property--and we have a picture of the pairing family among the celts. the marriage laws of the american indians seem strict in comparison to the celtic, but this is not surprising when we remember that the celts were still living in group marriage at cesar's time. the irish gens (sept; the tribe was called clainne, clan) is confirmed and described not alone by the ancient law codes, but also by the english jurists of the 17th century who were sent across for the purpose of transforming the clan lands into royal dominions. up to this time, the soil had been the collective property of the gens or the clan, except where the chiefs had already claimed it as their private dominion. when a gentile died, and a household was thus dissolved, the gentile chief (called caput cognationis by the english jurists) made a new assignment of the whole gentile territory to the rest of the household. this division of land probably took place according to such rules as were observed in germany. until about fifty years ago, village marks were quite frequent, and some of these so-called rundales may be found to this day. the farmers of a rundale, individual tenants on the soil that once was the collective property of the gens, but had been confiscated by the english conquerors, each pay the rent for his respective parcel. but they all combine their lands and parcel it off according to situation and quality. these parcels, called "gewanne" on the german river mosel, are cultivated collectively and their yield is divided into shares. marshland and pastures are used in common. fifty years ago, new divisions were still made occasionally, sometimes annually. the field map of such a rundale village looks exactly like that of a german "gehöferschaft" (farming commune) on the mosel or in the hochwald. the gens also survives in the "factions." the irish farmers often form parties that seem to be founded on absolutely contradictory or senseless distinctions, quite incomprehensible to englishmen. the only purpose of these factions is apparently to rally for the popular sport of hammering the life out of one another. they are artificial reincarnations, modern substitutes for the dispersed gentes that demonstrate the continuation of the old gentile instinct in their own peculiar manner. by the way, in some localities the gentiles are still living together on what is practically their old territory. during the thirties, for instance, the great majority of the inhabitants of the old county of monaghan had only four family names, i. e., they were descended from four gentes or tribes (clans).[27] the downfall of the gentile order in scotland dates from the suppression of the revolt in 1745. what link of this order the scotch clan represented remains to be investigated; that it is a link, is beyond doubt. walter scott's novels bring this scotch highland clan vividly before our eyes. it is, as morgan says, "an excellent type of the gens in organization and in spirit, and an extraordinary illustration of the power of the gentile life over its members.... we find in their feuds and blood revenge, in their localization by gentes, in their use of lands in common, in the fidelity of the clansman to his chief and of the members of the clan to each other, the usual and persistent features of gentile society.... descent was in the male line, the children of the males remaining members of the clan, while the children of its female members belonged to the clans of their respective fathers." the fact that matriarchal law was formerly in force in scotland is proved by the royal family of the picts, who according to beda observed female lineage. even a survival of the punaluan family had been preserved among the scots, as among the welsh. for until the middle ages, the chief of the clan or king, the last representatives of the former common husbands, had the right to claim the first night with every bride, unless a ransom was given. it is an indisputable fact, that the germans were organized in gentes up to the time of the great migrations. the territory between the danube, the rhine, the vistula and the northern seas was evidently occupied by them only a few centuries before christ. the cimbri and teutons were then still in full migration, and the suebi did not settle down until cesar's time. cesar expressly states that they settled down in gentes and kins (gentibus cognatibusque), and in the mouth of a roman of the gens julia this term gentibus has a definite meaning, that no amount of disputation can obliterate. this holds good for all germans. it seems that even the provinces taken by them from the romans were settled by distribution to gentes. the alemanian code of laws affirms that the people settled in gentes (genealogiae) on the conquered land south of the danube. genealogia is used in exactly the same sense as was later on mark--or dorfgenossenschaft (mark or village community). kovalevsky recently maintained that these genealogiae were the great household communities among which the land was divided, and from which the village communities developed later on. the same may be true of the fara, by which term the burgundians and langobards--a gothic and a herminonian or high german tribe--designated nearly, if not exactly, the same thing as the alemanian genealogiae. whether this is really the gens or the household community, must be settled by further investigation. the language records leave us in doubt, whether all the germans had a common expression for gens or not, and as to what this term was. etymologically, the gothic, kuni, middle high german künne, corresponds to the grecian genos and the latin gens, and is used in the same sense. we are led back to the time of matriarchy by the terms for "woman" which are derived from the same root: greek gynê, slav zenâ, gothic qvino, norse kona, kuna. among langobards and burgundians, i repeat, we find the term fara which grimm derives from the hypothetical root fisan, to beget. i should prefer to trace it to the more obvious root faran, german fahren, to ride or to wander, in order to designate a certain well defined section of the wandering corps, composed quite naturally of relatives. as a result of centuries of wanderings from west to east and back again, this term was gradually applied to the sex group itself. there is furthermore the gothic sibja, anglosaxon sib, old high german sippia, sippa, high german sippe. old norse has only the plural sifjar, the relatives; the singular occurs only as the name of a goddess, sif. finally, another expression occurs in the hildebrand song, where hildebrand asks hadubrand "who is your father among the men of the nation ... or what is your kin?" (eddo huêllihhes cnuosles du sîs). if there was a common german term for gens, it was presumably the gothic kuni. this is not only indicated by its identity with the corresponding term in related languages, but also by the fact that the word kuning, german könig, english king, is derived from it, all of which originally signified chief of gens or tribe. sibja, german sippe (relationship), does not appear worthy of consideration. in old norse, at least, sifjar signifies not alone kin by blood, but also kin through marriage; hence it comprises the members of at least two gentes, and the term sif cannot have been applied to the gens itself. in the order of battle, the germans, like the mexicans and greeks, arranged the horsemen as well as the wedge-like columns of the troops on foot by gentes. tacitus' indefinite expression, "by families and kinships," is explained by the fact that at his time the gens had long ceased to be a living body in rome. another passage of tacitus is decisive. there he says: "the mother's brother regards his nephew as his son; some even hold that the bond of blood between the maternal uncle and the nephew is more sacred and close than that between father and son, so that when persons are demanded as securities, the sister's son is considered a better security than the natural son of the man whom they desire to place under bonds." here we have a living proof of the matriarchal, and hence natural, gens, and it is described as a characteristic mark of the germans.[28] if a member of such a gens gave his own son as a security for the fulfillment of a vow and this son became the victim of his father's breach of faith, that was the concern of the father alone. but when the son of a sister was sacrificed, then the most sacred gentile law was violated. the next relative who was bound above all others to protect the boy or young man, was held responsible for his death; either he should not have given the boy in bail or he should have kept the contract. if we had no other trace of gentile law among the germans, this one passage would be sufficient proof of its existence. but there is another passage in the old norse song of the "dawn of the gods" and the "end of the world," the völuspâ, which is still stronger evidence, because it is 800 years younger. in this "vision of the seeress," in which bang and bugge have now demonstrated the existence of christian elements, also, the description of the time of general degeneration and corruption inaugurating the great catastrophe contains this passage: broedbr munu berjask ok at bönum verdask munu systrungar sifjum spilla. "brothers will wage war against one another and become each other's murderers, and sisters' children will break the bonds of blood." systrungr means the son of the mother's sister, and an abnegation of the blood kinship from that side surpasses in the eyes of the poet even the crime of fratricide. there is a deliberate climax in that systrungar, emphasizing the maternal kinship. if the term syskina-börn, brother's and sister's children, or syskina-synir, brother's and sister's sons, had been used, there would have been a weakening of the effect, instead of a climax. that shows that even at the time of the vikings, when the völuspâ was composed, the recollection of maternal law was not yet blotted out. among the germans with whom tacitus was familiar maternal law had already given way to paternal lineage. the children were the next heirs of the father; in the absence of children, the brothers and uncles on both sides were next in line. the admission of the mother's brother to the inheritance is a relic of maternal law and proves that paternal law had only recently been introduced by the germans. traces of maternal law were preserved until late in the middle ages. it seems that even at this late date people still felt certain misgivings about the reliability of fatherhood, especially among serfs. for when a feudal lord demanded the return of a fugitive serf from a city, it was first required, for instance in augsburg, basel and kaiserslautern, that the fact of his serfdom should be established by the oaths of six of his next blood relations, all of whom had to belong to his mother's kin. (maurer, städteverfassung, i, page 381.) another relic of declining matriarchy was the (from the roman standpoint) almost inexplicable respect of the germans for the female sex. young girls of noble family were considered the safest bonds to secure the keeping of contracts with germans. in battle, nothing stimulated their courage so much as the horrible thought that their wives and daughters might be captured and carried into slavery. a woman was to them something holy and prophetical, and they listened to her advice in the most important matters. veleda, the bructerian priestess on the river lippe, was the soul of the insurrection of the batavians, in which civilis at the head of german and belgian tribes shook the foundations of roman rule in gaul. the women held undisputed sway in the house. if we may believe tacitus, they, together with the old men and children, had to do all the work, for the men went hunting, drank and loafed. but as tacitus does not say who cultivated the fields, and as according to his explicit statement the slaves paid only tithes, but did not work under compulsion, it seems that the adult men would have had to do what little agricultural work was required. the form of marriage, as stated above, was the pairing family in gradual transition to monogamy. it was not yet strict monogamy, for polygamy was permitted for the wealthy. chasteness of the girls was in general carefully maintained, different from the custom of the celts. tacitus speaks with special ardor of the sacredness of the matrimonial bond among the germans. adultery of the woman is alone quoted by him as a reason for a divorce. but his treatment of this subject leaves many a flaw and besides, it too openly holds up the mirror of virtue to the dissipated romans. so much is certain: granted that the germans were such exceptional models of virtue in their forests, it required only a short contact with the outer world to bring them down to the level of the other average europeans. in the whirl of roman life the last trace of pure morals disappeared even faster than the german language. just read gregorius of tours. it is obvious that in the primeval forests of germany no such hyper-refined voluptuousness could exist as in rome. that implies fully enough superiority of the germans over the roman world, and there is no necessity for ascribing to them a moderation and chastity that have never been the qualities of any nation as a whole. a result of gentile law is the obligation to inherit the enmities as well as the friendships of one's father and relatives; so is furthermore the displacement of blood revenge by the wergeld, a fine to be paid in atonement of manslaughter and injuries. a generation ago this wergeld was considered a specifically german institution, but it has since been found that hundreds of nations introduced this mitigation of gentile blood revenge. like the obligatory hospitality, it is found, for instance, among the american indians. tacitus' description of the manner in which hospitality was observed (germania, chapt. 21) is almost identical with morgan's. the hot and ceaseless controversy as to whether or not the germans had already made a definite repartition of the cultivated land at tacitus' time, and how the passages relating to this question should be interpreted, is now a thing of the past. after the following facts had been established: that the cultivated land of nearly all nations was tilled collectively by the gens and later on by communistic family groups, a practice which cesar still found among the suebi; that as a result of this practice the land was re-apportioned periodically; and that this periodical repartition of the cultivated land was preserved in germany down to our days--after such evidence we need not waste any more breath on the subject. a transition within 150 years from collective cultivation, such as cesar expressly attributes to the suebi, to individual cultivation with annual repartition of the soil, such as tacitus found among the germans, is surely progress enough for any one. the further transition from this stage to complete private ownership of land during such a short period and without any external intervention would involve an absolute impossibility. hence i can only read in tacitus what he states in so many words: they change (or re-divide) the cultivated land every year, and enough land is left for common use. it is the stage of agriculture and appropriation of the soil which exactly tallies with the contemporaneous gentile constitution of the germans. i leave the preceding paragraph unchanged, just as it stood in former editions. meantime the question has assumed another aspect. since kovalevsky has demonstrated that the patriarchal household community existed nearly everywhere, perhaps even everywhere, as the connecting link between the matriarchal communistic and the modern isolated family, the question is no longer "collective property or private property?" as discussed between maurer and waitz, but "what was the form of that collective property?" not alone is there no doubt whatever, that the suebi were the collective owners of their land at cesar's time, but also that they tilled the soil collectively. the questions, whether their economic unit was the gens, or the household, or an intermediate communistic group, or whether all three of these groups existed at the same time as a result of different local conditions, may remain undecided for a long while yet. kovalevsky maintains that the conditions described by tacitus were not founded on the mark or village community, but on the household community, which developed much later into the village community by the growth of the population. hence the settlements of the germans on the territory they occupied at the time of the romans, and on territory later taken by them from the romans, would not have consisted of villages, but of large co-operative families comprising several generations, who cultivated a sufficient piece of land and used the surrounding wild land in common with their neighbors. if this was the case, then the passage in tacitus regarding the changing of the cultivated land would indeed have an agronomic meaning, viz., that the co-operative household cultivated a different piece of land every year, and the land cultivated during the previous year was left untilled or entirely abandoned. the scarcity of the population would have left enough spare wild lands to make all dispute about land unnecessary. only after the lapse of centuries, when the members of the family had increased so that the collective cultivation became incompatible with the prevailing conditions of production, the household communities were dissolved. the former common fields and meadows were then divided in the well-known manner among the various individual families that had now formed. the division of farm lands was first periodical, but later final, while forest, pasture and watercourses remained common property. it seems that this process of development has been fully established for russia by historical investigation. as for germany and, in the second place, for other german countries, it cannot be denied that this view affords in many instances a better interpretation of historical authorities and a readier solution of difficulties than the idea of tracing the village community to the time of tacitus. the oldest documents, e. g. of the codex laureshamensis, are easier explained by the help of the household than of the village community. on the other hand, new difficulties now arise and new questions pose themselves. it will require further investigations to arrive at definite conclusions. however, i cannot deny that the probability is very much in favor of the intermediate stage of the household community.[29] while the germans of cesar's time had either just taken up settled abodes, or were still looking for them, they had been settled for a full century at the time of tacitus. as a result there is a manifest progress in the production of necessities. the germans lived in block houses; their clothing was still as primitive as their forests, consisting of rough woolen cloaks, animal skins and linen underclothing for the women and the wealthy. they lived on milk, meat, wild fruit and, as pliny adds, oatmeal porridge which is the celtic national dish in ireland and scotland to-day. their wealth consisted in cattle of an inferior race. the kine were small, of unattractive appearance and without horns; the horses, little ponies, were not fast runners. money, roman coin only, was rarely used. they did not make ornaments of gold and silver, nor did they value these metals. iron was scarce and, at least among the tribes on the rhine and the danube, was apparently only imported, not mined by themselves. the runen script (imitations of greek and latin letters) was only used as a cipher and exclusively for religious sorcery. human sacrifices were still in vogue. in short, they were a nation just emerged out of the middle stage of barbarism into the upper stage. but while the tribes whose immediate contact with the romans facilitated the import of roman products, were thereby prevented from acquiring a metal and textile industry of their own, there is not the least doubt that the tribes of the northeast, on the baltic, developed these industries. the pieces of armor found in the bogs of sleswick--a long iron sword, a coat of mail, a silver helmet, etc., together with roman coins from the close of the second century--, and the german metal ware spread by the migrations represent a peculiar type of a superior finish, even such as were modeled after roman originals. with the exception of england, the emigration into the civilized roman empire everywhere put an end to this home industry. how simultaneously this industry arose and developed, is shown e. g. by the bronze spangles. the specimens found in burgundy, in roumania and on the sea of asow, might have been manufactured in the same shop with those found in england or sweden and are of undoubted german origin. the german constitution was also in keeping with the upper stage of barbarism. according to tacitus, the council of chiefs (principes) universally decided matters of minor importance and prepared important matters for the decision of the public meetings. so far as we know anything of the public meeting in the lower stage of barbarism, viz., among the american indians, it was only held by gentes, not by tribes or leagues of tribes. the chiefs of peace (principes) were still sharply distinguished from the chiefs of war (duces), just as among the iroquois. the peace chiefs were already living in part on honorary donations of the gentiles, such as cattle, grain, etc. they were generally elected from the same family, analogous to america. the transition to paternal law favored, as in greece and rome, the gradual transformation of office by election into hereditary office. a "noble" family was thus gradually raised in each gens. most of this hereditary nobility came to grief during the migrations or shortly after. the military leaders were elected solely on their merits. they had little power and were obliged to rely on the force of their example. the actual disciplinary power in the army was held by the priests, as tacitus implicitly states. the public meeting was the real executive. the king or chief of the tribe presided. the people decided. a murmur signified "no," acclamation and clanging of weapons meant "yes." the public meeting was at the same time a court of justice. complaints were here brought forth and decided, and death sentences pronounced. only cowardice, treason and unnatural lust were capital crimes. the gentes and other subdivisions decided in a body under the chairmanship of the chief, who in all original german courts was only the manager of the transactions and questioner. among germans, the sentence has ever and everywhere been pronounced by the community. leagues of tribes came into existence since cesar's time. some of them already had kings. the first chief of war began to covet the usurper's place, as among greeks and romans, and sometimes succeeded in obtaining it. such successful usurpers were by no means absolute rulers. but still they began to break through the bonds of the gens. while freed slaves generally occupied an inferior position, because they could not be members of any gens, they often gained rank, wealth and honors as favorites of the new kings. the same thing took place after the conquest of the roman empire by those military leaders who had now become kings of great countries. among the frankons, slaves and freed slaves of the king played a leading role first at the court, then in the state. a large part of the new nobility were descended from them. there was one institution that especially favored the rise of royalty: the military following. we have already seen, how among the american redskins private war groups were formed independently of the gens. among the germans, these private groups had developed into standing bodies. the military leader who had acquired fame, gathered around his person a host of booty loving young warriors. they were pledged to personal faithfulness by their leader who in return pledged himself to them. he fed them, gave them presents and organized them on hierarchic principles: a body guard and a troop for immediate emergencies and short expeditions, a trained corps of officers for larger enterprises. these followings must have been rather insignificant, in fact we find them so later under odoaker in italy, still they portended the decay of the old gentile liberty, and the events during and after the migrations proved that military retainers were heralds of evil. for in the first place, they fostered the growth of royalty. in the second place, tacitus affirms that they could only be held together by continual warfare and plundering expeditions. robbery became their life purpose. if the leader found nothing to do in his neighborhood, he marched his troops to other countries, where a prospect of war and booty allured him. the german auxiliaries, many of whom fought under the roman standard even against germans, had been largely recruited among such followings. they represent the first germs of the "landsknecht" profession, the shame and curse of the germans. after the conquest of the roman empire, these retainers of kings together with the unfree roman courtiers formed the other half of the nobility of later days. in general, then, the german tribes combined into nations had the same constitution that had developed among the greeks of the heroic era and the romans at the time of the so-called kings: public meetings, councils of gentile chiefs and military leaders who coveted actual royal power. it was the highest constitution which the gentile order could produce; it was the standard constitution of the higher stage of barbarism. if society passed the limits for which this constitution sufficed, then the end of the gentile order had come. it collapsed and the state took its place. footnotes: [27] author's note to the fourth edition. during a few days passed in ireland, i once more became conscious to what extent the rural population is still living in the conceptions of the gentile period. the great landholder, whose tenant the farmer is, still enjoys a position similar to that of a clan chief, who has to supervise the cultivation of the soil in the interest of all, who is entitled to a tribute from the farmer in the form of rent, but who also has to assist the farmer in cases of need. likewise everyone in comfortable circumstances is considered under obligation to help his poorer neighbors whenever they are in need. such assistance is not charity, it is simply the prerogative of the poor gentile, which the rich gentile or the chief of the clan must respect. this explains why the professors of political economy and the jurists complain of the impossibility of imparting the idea of the modern private property to the irish farmers. property that has only rights, but no duties, is absolutely beyond the ken of the irishman. no wonder that so many irishmen who are suddenly cast into one of the modern great cities of england and america, among a population with entirely different moral and legal standards, despair of all morals and justice, lose all hold and become an easy prey to demoralization. [28] author's note. the greeks know this special sacredness of the bond between the mother's brother and his nephew, a relic of maternal law found among many nations, only in the mythology of heroic times. according to diodorus iv., 34, meleagros kills the sons of thestius, the brother of his mother althaia. the latter regards this deed as such a heinous crime that she curses the murderer, her own son, and prays for his death. "it is said that the gods fulfilled her wish and ended the life of meleagros." according to the same diordorus, iv., 44, the argonauts under herakles land in thracia and there find that phineus, at the instigation of his second wife, shamefully maltreats his two sons, the offspring of his first deserted wife, the boread kleopatra. but among the argonauts there are also some boreads, the brothers of kleopatra, the uncles of the maltreated boys. they at once champion their nephews, set them free and kill their guards. [29] translator's note. the household community is still a distinct stage of production in georgia (south russia). the northern boundary of georgia is the caucasus. the georgians, a people of high intelligence, have for centuries maintained their independence against persians, arabs, turcs and tartars. dr. philipp gogitshayshvili gives the following interesting description of their condition in an article, entitled "das gewerbe in georgien" (zeitschrift für die gesammte staatswissenschaft, ergänzungsheft i., tübingen, 1901). "the swanians (a district of georgia is called swania) have all the necessities of life. they weave their own clothing, make their own weapons, powder and even silver, and gold ornaments. there is no modern trading.... they are acquainted with exchange, but only of products for products. money does not circulate and there are neither shops nor markets.... there is not a single beggar, not a single man who asks for charity. with the exception of iron, salt and chintz, the swanians produce all they need themselves. they prepare their linen from hemp, their clothing from skins of wild animals and wool, their footwear from hides and leather. they make feltcaps, household goods, weapons, saddles, bridles and agricultural implements." chapter viii. the rise of the state among germans. according to tacitus the german nation was very strong in numbers. an approximate idea of the strength of individual german nations is given by caesar. he states that the number of usipetans and tencterans who crossed over to the left bank of the rhine amounted to 180,000, including women and children. about 100,000[30] members to a single nation is considerably more than e. g. the iroquois numbered in their prime, when 20,000 of them became the terror of the whole country, from the great lakes to the ohio and potomac. if we attempt to place the better known nations of the rhine country by the help of historical reports, we find that a single nation occupies on the map the average area of a prussian government district, about 10,000 square kilometers[31] or 182 german geographical square miles.[32] the germania magna of the romans, reaching to the vistula, comprised about 500,000 square kilometers. counting an average of 100,000 for any single nation, the total population of germania magna would have amounted to five millions. this is a rather high figure for a barbarian group of nations, although 10 inhabitants to the square kilometer or 550 to the geographical square mile is very little when compared to present conditions. but this does not include the whole number of germans then living. we know that german nations of the gothic race, bastarnians, peukinians and others, lived all along the carpathian mountains away down to the mouth of the danube. they were so numerous that pliny designated them as the fifth main division of the germans. as much as 180 years b. c. they were mercenaries of the macedonian king perseus, and during the first years of augustus they were still pushing their way as far as the vicinity of adrianople. assuming them to have been one million strong we find that at least six millions was the probable population of germany at the beginning of the christian era. after the final settlement in germany, the population must have grown with increasing rapidity. the industrial progress mentioned above would be sufficient to prove it. the objects found in the bogs of sleswick, to judge by the roman coins found with them, are from the third century. hence at that time the metal and textile industry was already well developed on the baltic, a lively traffic with the roman empire was carried on, and the wealthier class enjoyed a certain luxury--all of which indicates that the population had increased. but at the same time the general war of aggression against the romans commenced along the whole line of the rhine, of the roman wall and of the danube, a line stretching from the north sea to the black sea. this is another proof of the ever growing outward pressure of the population. during the struggle which lasted three centuries, the whole main body of the gothic nations, with the exception of the scandinavian goths and the burgundians, marched to the southeast and formed the left wing of the long line of attack. the high germans (herminonians) on the upper danube fought in the center, and the iskaevonians on the rhine, now called franks, advanced on the right wing. the conquest of brittany fell to the lot of the ingaevonians.[33] at the end of the fifth century, the exhausted, bloodless, and helpless roman empire lay open to the germans. in former chapters we stood at the cradle of antique greek and roman civilization. now we are standing at its grave. the equalizing plane of roman world power had been gliding for centuries over all the mediterranean countries. where the greek language did not offer any resistance, all national idioms had been crushed by a corrupted latin. there were no longer any distinctions of nationality, no more gauls, iberians, ligurians, noricans; they had all become romans. roman administration and roman law had everywhere dissolved the old gentile bodies and thus crushed the last remnant of local and national independence. the new type of romans offered no compensation for this loss, for it did not express any nationality, but only the lack of a nationality. the elements for the formation of new nations were present everywhere. the latin dialects of the different provinces differentiated more and more. but the natural boundaries that had once made italy, gaul, spain, africa independent territories, were still present and made themselves felt. yet there was no strength anywhere for combining these elements into new nations. nowhere was there the least trace of any capacity for development, nor any power of resistance, much less any creative power. the immense human throng of that enormous territory was held together by one bond alone: the roman state. but this state had in time become the worst enemy and oppressor of its subjects. the provinces had ruined rome. it had become a provincial town like all others, privileged, but no longer ruling, no longer the center of the world empire, no longer even the seat of the emperors and subregents who lived in constantinople, treves and milan. the roman state had become an immense complicated machine, designed exclusively for the exploitation of its subjects. taxes, state imposts and tithes of all sorts drove the mass of the people deeper and deeper into poverty. by the blackmailing practices of the regents, tax collectors and soldiers, the pressure was increased to such a point that it became insupportable. this was the outcome of rome's world power. the right of the state to existence was founded on the preservation of order in the interior and the protection against the barbarians outside. but this order was worse than the most disgusting disorder, and the barbarians against whom the state pretended to protect its citizens, were hailed by them as saviors. the condition of society was no less desperate. during the last years of the republic, the roman rulers had already contrived the pitiless exploitation of the conquered provinces. the emperors had not abolished, but organized this exploitation. the more the empire fell to pieces, the higher rose the taxes and tithes, and the more shamelessly did the officials rob and blackmail. commerce and industry had never been a strong point of the domineering romans. only in usury they had excelled all other nations before and after them. what commerce had managed to exist, had been ruined by official extortion. only in the east, in the grecian part of the empire, some commerce still vegetated, but this is outside of the scope of our study. universal reduction to poverty, decrease of traffic, of handicrafts, of art, of population, decay of the towns, return of agriculture to a lower stage--that had been the final result of roman world supremacy. but now agriculture, the most prominent branch of production in the whole old world, was again supreme, and more than ever. in italy, the immense estates (latifundiae) that comprised nearly the whole country since the end of the republic, had been utilized in two ways: either as pastures on which the population had been replaced by sheep and oxen, the care of which required only a few slaves; or as country seats, on which masses of slaves carried on horticulture on a large scale, partly for the luxury of the owner, partly for sale on the markets of the towns. the great pastures had been preserved and even extended in certain parts. but the country seats and their horticulture had gone to ruin through the impoverishment of their owners and the decay of the towns. latifundian economy based on slave labor was no longer profitable; but in its time it had been the only possible form of agriculture on a large scale. now, however, small production had again become the only lucrative form. one country seat after the other was parceled and leased in small lots to hereditary tenants who paid a fixed rent, or to partiarii, more administrators than tenants who received one-sixth or even only one-ninth of a year's product in remuneration for their work. but these little lots were principally disposed of to colonists who paid a fixed sum annually and could be transferred by sale together with their lots. although no slaves, still these colonists were not free; they could not marry free citizens, and marriages with members of their own class were not regarded as valid, but as mere concubinages like those of the slaves. the colonists were the prototypes of the medieval serfs. the ancient slavery had lost its vitality. neither in the country in large scale agriculture, nor in the manufactories of the towns did it yield any more returns--the market for its products had disappeared. and small scale production and artisanship, to which the gigantic production of the flourishing time of the empire was now reduced, did not leave any room for numerous slaves. only house and luxury slaves of the rich were still retained by society. but this declining slavery was as yet sufficiently strong to brand productive labor as slave work, as below the dignity of free romans; and everybody was now a free roman. an increasing number of superfluous slaves who had become a drug on their owners were dismissed, while on the other hand the number of colonists and of beggared free men (similar to the poor whites in the slave states of america) grew continuously. christianity is perfectly innocent of this gradual decline of ancient slavery. for it had taken part in the slavery of the roman empire for centuries. it never prevented the slave trade of christians later on, neither of the germans in the north, nor of the venetians on the mediterranean, nor the negro traffic of later years.[34] slavery died, because it did not pay any longer. but it left behind its poisonous sting by branding as ignoble the productive labor of free men. this brought the roman world into a closed alley from which it could not escape. slave labor was economically impossible and the labor of free men was under a moral ban. the one could exist no longer, the other could not yet be the fundamental form of social production. there was no other help but a complete revolution. the provinces were not any better off. the most complete reports on this subject are from gaul. by the side of the colonists, free farmers still existed there. in order to protect themselves against the brutal blackmail of the officials, judges and usurers, they frequently placed themselves under the protectorate of a man of influence and power. not only single individuals did so, but whole communities, so that the emperors of the fourth century often issued decrees prohibiting this practice. but what good did protection do to the clients? the patron imposed the condition that they should transfer the title of their lots to him, and in return he assured them of the free enjoyment of their land for life--a trick which the holy church remembered and freely imitated during the ninth and tenth century, for the greater glory of god. in the fifth century, however, about the year 475, bishop salvianus of marseilles still vehemently denounced such robbery and relates that the methods of the roman officials and great landlords became so oppressive that many "romans" fled to the districts occupied by the barbarians and feared nothing so much as a return under roman rule. that poor parents frequently sold their children into slavery, is proved by a law forbidding this practice. in return for liberating the romans from their own state, the barbarians appropriated two-thirds of the entire land and divided it among themselves. the distribution was made by gentile rules. as the number of the conquerors was relatively small, large tracts remained undivided in the possession of the nation, the tribe or the gens. every gens distributed the land for cultivation and pastures to the individual households by drawing lots. we do not know whether repeated divisions took place at that time. at any rate, this practice was soon discarded in the roman provinces, and the individual lot became salable private property, a so-called freehold (allodium). forests and pastures remained undivided for collective use. this use and the mode of cultivating the divided land was regulated by tradition and the will of the community. the longer the gens lived in its village, and the better germans and romans became amalgamated in the course of time, the more did the character of kinship lose ground before territorial bounds. the gens disappeared in the mark commune, the members of which, however, still exhibited traces of kinship. in the countries where mark communes were still preserved--in the north of france, in england, germany and scandinavia--the gentile constitution gradually merged into a local constitution and thus acquired the capacity of being fitted into a state. nevertheless this local constitution retained some of the primeval democratic character which distinguishes the whole gentile order, and thus preserved a piece of gentilism even in its enforced degeneration of later times. this left a weapon in the hands of the oppressed, ready to be wielded by them even in the present time. the rapid loss of the bonds of blood in the gens as a result of conquest caused the degeneration of the tribal and national organs of gentilism. we know that the rule over subjugated people does not agree with the gentile constitution. here we have an opportunity to observe this on a large scale. the german nations, masters of the roman provinces, had to organize their conquests. but they could neither adopt the romans as a body into their gentes, nor rule them by the help of gentile organs. a substitute for them had to be placed at the head of the roman administrative bodies that were largely retained in local affairs, and this substitute could only be another state. hence the organs of the gentile constitution had to become organs of the state, and under the pressure of the moment this took place very rapidly. now the first representative of the conquering nation was the military leader. the internal and external security of the conquered territory demanded that his power should be strengthened. the moment had arrived for the transition from war leadership to monarchy. and the change took place. take e. g. the realm of the franks. the victorious salians had not only come into possession of the extensive roman state dominions, but also of all the large tracts that had not been assigned to the more or less small mark communities, especially of all large forest tracts. the first thing which the king of the franks, now a real monarch, did was to change this national property into royal property, to steal it from the people and to donate or give it in lien to his retainers. this retinue, originally composed of his personal war followers and of the subcommanders of the army, was increased by romans, i. e., romanized gauls who quickly became invaluable to the king through their knowledge of writing, their education and their familiarity with the language and laws of the country, and with the language of latin literature. but slaves, serfs and freed slaves also became his courtiers. from among all these he chose his favorites. at first they received donations of public land, and later on these benefits were generally conferred for the lifetime of the king. the foundation of a new nobility was thus laid at the expense of the people. but this was not all. the wide expanse of the empire could not be governed by means of the old gentile constitution. the council of chiefs, if it had not become obsolete long ago, could not have held any more meetings. it was soon displaced by the standing retinue of the king. a pretense at the old public meeting was still kept up, but it also was more and more limited to the meeting of the subcommanders of the army and the rising nobles. just as formerly, the roman farmers during the last period of the republic, so now the free land-owning peasants, the mass of the frank people, were exhausted and reduced to penury by continual civil feuds and wars of conquest. they who once had formed the whole army and, after the conquest of france, its picked body, were so impoverished at the end of the ninth century that hardly more than every fifth man could go to war. the former army of free peasants, convoked directly by the king, was replaced by an army composed of dependents of the new nobles. among these servants were also villeins, the descendants of the peasants who had acknowledged no master but the king and a little earlier not even a king. under charlemagne's successors the ruin of the frank peasantry was aggravated by internal wars, weakness of the royal power and corresponding overbearance of the nobles. the latter had received another addition to their ranks through the installation by charlemagne of "gau"[35] (district) counts who strove to make their offices hereditary. the invasions of the normans completed the wreck of the peasantry. fifty years after the death of charlemagne, france lay as resistless at the feet of the normans, as four hundred years previous the roman empire had lain at the feet of the franks. not only was the external impotence almost the same, but also the internal order or rather disorder of society. the free frank peasants found themselves in a similar position as their predecessors, the roman colonists. ruined by wars and robberies, they had been forced to seek the protection of the nobles or the church, because the royal power was too weak to shield them. but they had to pay dearly for this protection. like the gallic farmers, they had to transfer the titles of their land to their patrons, and received it back from them as tenants in different and varying forms, but always only in consideration of services and tithes. once driven into this form of dependence, they gradually lost their individual liberty. after a few generations most of them became serfs. how rapidly the free peasants sank from their level is shown by the land records of the abbey saint germain des prés, then near, now in, paris. on the vast holdings of this abbey in the surrounding country 2788 households, nearly all of them franks with german names, were living at charlemagne's time; 2080 of them were colonists, 35 lites,[36] 220 slaves and only 8 freeholders. the practice of the patrons to demand the transfer of the land titles to themselves and give the former owners the use of the land for life, denounced as ungodly by salvianus, was now universally practiced by the church in its dealings with the peasants. the compulsory labor that now came more and more into vogue, had been moulded as much after the roman angariae, compulsory service for the state, as after the services of the german mark men in bridge and road building and other work for common purposes. by all appearances, then, the mass of the population had arrived at the same old goal after four hundred years. that proved two things: firstly, that the social differentiation and the division of property in the sinking roman empire corresponded perfectly to the contemporaneous stage of production in agriculture and industry, and hence was unavoidable; secondly, that this stage of production had not been essentially altered for better or worse during four hundred years, and therefore had necessarily produced the same division of property and the same classes of population. the town had lost its supremacy over the country during the last centuries of the roman empire, and had not regained it during the first centuries of german rule. this presupposes a low stage of agriculture and industry. such a general condition produces of necessity the domination of great proprietors and the dependence of small farmers. how impossible it was to graft either the slave labor of roman latifundian economy or the compulsory labor of the new large scale production into such a society, is proved by charlemagne's very extensive experiments with his famous imperial country residences that left hardly a trace. these experiments were continued only by the convents and brought results only for them. but the convents were abnormal social institutions, founded on celibacy. they could do exceptional work, but they had to remain exceptions themselves for this very reason. yet some progress had been made during these four hundred years. although in the end we find the same main classes as in the beginning, still the human beings that made up these classes had changed. the ancient slavery had disappeared; gone were also the beggared freemen who had despised work as slavish. between the roman colonist and the new serf, there had been the free frank peasant. the "useless remembrance and the vain feud" of the decaying roman nation was dead and gone. the social classes of the ninth century had been formed during the travail of a new civilization, not in the demoralization of a sinking one. the new race, masters and servants, were a race of men as compared to their roman predecessors. the relation of powerful landlords to serving peasants, which had been the unavoidable result of collapse in the antique world, was for the franks the point of departure on a new line of development. moreover, unproductive as these four hundred years may appear, they left behind one great product: the modern nationalities, the reorganization and differentiation of west european humanity for the coming history. the germans had indeed infused a new life into europe. therefore the dissolution of the states in the german period did not end in a subjugation after the norse-saracene plan, but in a continued development of the estate of the royal beneficiaries and an increasing submission (commendatio) to feudalism, and in such a tremendous increase of the population, that no more than two centuries later the bloody drain of the crusades could be sustained without injury. what was the mysterious charm by which the germans infused a new life into decrepit europe? was it an innate magic power of the german race, as our jingo historians would have it? by no means. of course, the germans were a highly gifted aryan branch and, especially at that time, in full process of vigorous development. they did not, however, rejuvenate europe by their specific national properties, but simply by their barbarism, their gentile constitution. their personal efficiency and bravery, their love of liberty, and their democratic instinct which regarded all public affairs as its own affairs, in short all those properties which the romans had lost and which were alone capable of forming new states and raising new nationalities out of the muck of the roman world--what were they but characteristic marks of the barbarians in the upper stage, fruits of the gentile constitution? if they transformed the antique form of monogamy, mitigated the male rule in the family and gave a higher position to women than the classic world had ever known, what enabled them to do so, unless it was their barbarism, their gentile customs, their living inheritance of the time of maternal law? if they could safely transmit a trace of the genuine gentile order, the mark communes, to the feudal states of at least three of the most important countries--germany, north of france, and england--and thus give a local coherence and the means of resistance to the oppressed class, the peasants, even under the hardest medieval serfdom; means which neither the slaves of antiquity nor the modern proletarian found ready at hand--to whom did they owe this, unless it was again their barbarism, their exclusively barbarian mode of settling in gentes? and in conclusion, if they could develop and universally introduce the mild form of servitude which they had been practicing at home, and which more and more displaced slavery also in the roman empire--to whom was it due, unless it was again their barbarism, thanks to which they had not yet arrived at complete slavery, neither in the form of the ancient labor slaves, nor in that of the oriental house slaves? this milder form of servitude, as fourier first stated, gave to the oppressed the means of their gradual emancipation as a class (fournit aux cultivateurs des moyens d'affranchissement collectif et progressif) and is therefore far superior to slavery, which permits only the immediate enfranchisement of the individual without any transitory stage. antiquity did not know any abolition of slavery by rebellion, but the serfs of the middle ages gradually enforced their liberation as a class. every vital and productive germ with which the germans inoculated the roman world, was due to barbarism. indeed, only barbarians are capable of rejuvenating a world laboring under the death throes of unnerved civilization. and the higher stage of barbarism, to which and in which the germans worked their way up previous to the migrations, was best calculated to prepare them for this work. that explains everything. footnotes: [30] author's note. the number assumed here is confirmed by a passage of diodorus on the celts of gaul: "many nations of unequal strength are living in gaul. the strongest of them numbers about 200,000, the weakest 50,000." (diodorus siculus, v., 25.) that gives an average of 125,000. the individual nations of gaul, being more highly developed, should be gauged more numerous than those of germany. [31] translator's note. 3861 square statute miles. [32] a german geographical mile contains 7,420.44 meters, or 7.42044 kilometers; hence a german geographical square mile contains 55.0629 square kilometers, equal to 21.2598 square statute miles. [33] translator's note. the ingaevonians comprised the friesians, the saxons, the jutes and the angles, living on the coast of the north sea from the zuider zee to denmark. [34] author's note. according to bishop liutprand of cremona, the main industry of verdun in the tenth century, in the so-called holy german empire, was the manufacture of eunuchs, who were exported with great profit to spain for the harems of the moors. [35] translator's note. the "gau" is a larger territory than the "mark." caesar and tacitus called it pagus. [36] translator's note. the name given in ancient law to dependent farmers. chapter ix. barbarism and civilization. having observed the dissolution of the gentile order in the three concrete cases of the greek, roman, and german nations, we may now investigate in conclusion the general economic conditions that began by undermining the gentile organization of society during the upper stage of barbarism and ended by doing away with it entirely at the advent of civilization. marx's "capital" will be as necessary for the successful completion of this task as morgan's "ancient society." a growth of the middle stage and a product of further development during the upper stage of savagery, the gens reached its prime, as near as we can judge from our sources of information, in the lower stage of barbarism. with this stage, then, we begin our investigation. in our standard example, the american redskins of that time, we find the gentile constitution fully developed. a tribe had differentiated into several gentes, generally two. through the increase of the population, these original gentes again divided into several daughter gentes, making the mother gens a phratry. the tribe itself split up into several tribes, in each of which we again meet a large number of representatives of the old gentes. in certain cases a federation united the related tribes. this simple organization fully sufficed for the social conditions out of which it had grown. it was nothing else than the innate, spontaneous expression of those conditions, and it was well calculated to smooth over all internal difficulties that could arise in this social organization. external difficulties were settled by war. such a war could end in the annihilation of a tribe, but never in its subjugation. it is the grandeur and at the same time the limitation of the gentile order that it has no room either for masters or servants. there were as yet no distinctions between rights and duties. the question whether he had a right to take part in public affairs, to practice blood revenge or to demand atonement for injuries would have appeared as absurd to an indian, as the question whether it was his duty to eat, sleep, and hunt. nor could any division of a tribe or gens into different classes take place. this leads us to the investigation of the economic basis of those conditions. the population was very small in numbers. it was collected only on the territory of the tribe. next to this territory was the hunting ground surrounding it in a wide circle. a neutral forest formed the line of demarcation from other tribes. the division of labor was quite primitive. the work was simply divided between the two sexes. the men went to war, hunted, fished, provided the raw material for food and the tools necessary for these pursuits. the women cared for the house, and prepared food and clothing; they cooked, weaved and sewed. each sex was master of its own field of activity; the men in the forest, the women in the house. each sex also owned the tools made and used by it; the men were the owners of the weapons, of the hunting and fishing tackle, the women of the household goods and utensils. the household was communistic, comprising several, and often many, families.[37] whatever was produced and used collectively, was regarded as common property: the house, the garden, the long boat. here, and only here, then, do we find the "self-earned property" which jurists and economists have falsely attributed to civilized society, the last deceptive pretext of legality on which modern capitalist property is leaning. but humanity did not everywhere remain in this stage. in asia they found animals that could be tamed and propagated in captivity. the wild buffalo cow had to be hunted down; the tame cow gave birth to a calf once a year, and also furnished milk. some of the most advanced tribes--aryans, semites, perhaps also turanians--devoted themselves mainly to taming, and later to raising and tending, domestic animals. the segregation of cattle raising tribes from the rest of the barbarians constitutes the first great division of social labor. these stock raising tribes did not only produce more articles of food than the rest of the barbarians, but also different kinds of products. they were ahead of the others by having at their disposal not alone milk, milk products, and a greater abundance of meat, but also skins, wool, goat's hair, and the spun and woven goods which the growing abundance of the raw material brought into common use. this for the first time made a regular exchange of products possible. in former stages, exchange could only take place occasionally, and an exceptional ability in manufacturing weapons and tools may have led to a transient division of labor. for example, unquestionable remains of workshops for stone implements of the neolithic period have been found in many places. the artists who developed their ability in those shops, most probably worked for the collectivity, as did the artisans of the indian gentile order. at any rate, no other exchange than that within the tribe could exist in that stage, and even that was an exception. but after the segregation of the stock raising tribes we find all the conditions favorable to an exchange between groups of different tribes, and to a further development of this mode of trading into a fixed institution. originally, tribe exchanged with tribe through the agency of their tribal heads. but when the herds drifted into the hands of private individuals, then the exchange between individuals prevailed more and more, until it became the established form. the principal article of exchange which the stock raising tribes offered to their neighbors was in the form of domestic animals. cattle became the favorite commodity by which all other commodities were measured in exchange. in short, cattle assumed the functions of money and served in this capacity as early as that stage. with such necessity and rapidity was the demand for a money commodity developed at the very beginning of the exchange of commodities. horticulture, probably unknown to the asiatic barbarians of the lower stage, arose not later than the middle stage of barbarism, as the forerunner of agriculture. the climate of the turanian highland does not admit of a nomadic life without a supply of stock feed for the long and hard winter. hence the cultivation of meadows and grain was indispensable. the same is true of the steppes north of the black sea. once grain had been grown for cattle, it soon became human food. the cultivated land belonged as yet to the tribe and was assigned first to the gens, which in its turn distributed it to the households, and finally to individuals; always for use only, not for possession. the users may have had certain claims to the land, but that was all. two of the industrial acquisitions of this stage are especially important. the first is the weaving loom, the second the melting of metal ore and the use of metals in manufacture. copper, tin, and their alloy, bronze, were the most essential of them. bronze furnished tools and weapons, but could not displace stone implements. only iron could have done that, but the production of iron was as yet unknown. gold and silver were already used for ornament and decoration, and must have been far more precious than copper and bronze. the increase of production in all branches--stock raising, agriculture, domestic handicrafts--enabled human labor power to produce more than was necessary for its maintenance. it increased at the same time the amount of daily work that fell to the lot of every member of a gens, a household, or a single family. the addition of more labor power became desirable. it was furnished by war; the captured enemies were transformed into slaves. under the given historical conditions, the first great division of social labor, by increasing the productivity of labor, adding to the wealth, and enlarging the field of productive activity, necessarily carried slavery in its wake. out of the first great division of social labor arose the first great division of society into two classes: masters and servants, exploiters and exploited. how and when the herds were transferred from the collective ownership of the tribe or gens to the proprietorship of the heads of the families, is not known to us. but it must have been practically accomplished in this stage. the herds and the other new objects of wealth brought about a revolution in the family. procuring the means of existence had always been the man's business. the tools of production were manufactured and owned by him. the herds were the new tools of production, and their taming and tending was his work. hence he owned the cattle and the commodities and slaves obtained in exchange for them. all the surplus now resulting from production fell to the share of the man. the woman shared in its fruition, but she could not claim its ownership. the "savage" warrior and hunter had been content to occupy the second place in the house, to give precedence to the woman. the "gentler" shepherd, standing on his wealth, assumed the first place and forced the woman back into the second place. and she had no occasion to complain. the division of labor in the family had regulated the distribution of property between man and wife. this division of labor remained unchanged. yet the former domestic relation was now reversed, simply because the division of labor outside of the family had been altered. the same cause that once had secured the supremacy in the house for women, viz., the confining of women's activity to domestic labor, now assured the supremacy of the men in the households. the domestic labor of women was considered insignificant in comparison to men's work for a living. the latter was everything, the former a negligible quantity. at this early stage we can already see that the emancipation of women and their equality with men are impossible and remain so, as long as women are excluded from social production and restricted to domestic labor. the emancipation of women becomes feasible only then when women are enabled to take part extensively in social production, and when domestic duties require their attention in a minor degree. this state of things was brought about by the modern great industries, which not only admit of women's liberal participation in production, but actually call for it and, besides, endeavor to transform domestic work also into a public industry. man's advent to practical supremacy in the household marked the removal of the last barrier to his universal supremacy. his unlimited rule was emphasized and endowed with continuity by the downfall of matriarchy, the introduction of patriarchy, and the gradual transition from the pairing family to the monogamic family. this made a breach in the old gentile order. the monogamic family became a power and lifted a threatening hand against the gens. the next step brings us to the upper stage of barbarism, that period in which all nations of civilization go through their heroic era. it is the time of the iron sword, but also of the iron plow share and axe. the iron had become the servant of man. it is the last and most important of all raw products that play a revolutionary role in history; the last--if we except the potato. iron brought about agriculture on a larger scale and the clearing of extensive forest tracts for cultivation. it gave to the craftsman a tool of such hardness and sharpness that no stone, no other known metal, could withstand it. all this came about gradually. the first iron was often softer than bronze. therefore stone implements disappeared very slowly. not only in the hildebrand song, but also at hastings in 1066, stone axes were still used in fighting. but progress was now irresistible, less interrupted and more rapid. the town, inclosing houses of stone or tiles within its turreted and crested stone walls, became the central seat of the tribe or federation of tribes. it showed an astounding progress of architecture, but also an increase of danger and of the demand for protection. wealth increased rapidly, but it was the wealth of private individuals. weaving, metal work and other more and more differentiating industries developed an increasing variety and display of art in production. agriculture furnished not alone grain, peas, beans and fruit, but also oil and wine, the preparation of which had now been learned. such a diversity of action could not be displayed by any single individual. the second great division of labor took place: handicrafts separated from agriculture. the growing intensity of production and the increased productivity enhanced the value of human labor power. slavery, which had been a rising and sporadic factor in the preceding stage, now became an essential part of the social system. the slaves ceased to be simple assistants. they were now driven in scores to the work in the fields and shops. the division of production into two great branches, agriculture and handicrafts, gave rise to production for exchange, the production of commodities. trade arose at the same time, not only in the interior and on the tribal boundaries, but also in the form of maritime exchange. all this was as yet in a very undeveloped state. the precious metals gained preference as a universal money commodity, but still uncoined and exchanged merely by dead weight. the distinction between rich and poor was added to that between free men and slaves. this and the new division of labor constitute a new division of society into classes. the differences in the amount of property belonging to the several family heads broke up the old communistic households one by one, wherever they might have been preserved thus far. this made an end to the collective cultivation of the soil for the account of the community. the cultivated land was assigned for use to the several families, first for a limited time, later for once and all. the transition to full private property was accomplished gradually and simultaneously with the transition from the pairing family to monogamy. the monogamous family began to be the economic unit of society. the increase of population necessitated a closer consolidation against internal and external foes. the federation of related tribes became unavoidable. their amalgamation, and thence the amalgamation of the separate tribal territories to one national territory, was the following step. the military leader--rex, basileus, thiudans--became an indispensable and standing official. the public meeting was introduced wherever it did not yet exist. the military leader, the council of chiefs, and the public meeting formed the organs of the military democracy that had grown out of the gentile constitution. military democracy--for now war and organization for war were regular functions of social life. the wealth of the neighbors excited the greed of nations that began to regard the acquisition of wealth as one of the main purposes of their life. they were barbarians: robbing appeared to them easier and more honorable than producing. war, once simply a revenge for transgressions or a means for enlarging a territory that had become too narrow, was now waged for the sake of plunder alone and became a regular profession. not in vain did threatening walls cast a rigid stare all around the new fortified towns: their yawning ditches were the tomb of the gentile constitution, and their turrets already reached up into civilization. the internal affairs underwent a similar change. the plundering wars increased the power of the military leader and of the subcommanders. the habitual election of the successors from the same family was gradually transformed into hereditary succession, first by sufferance, then by claim, and finally by usurpation. thus the foundation of hereditary royalty and nobility was laid. in this manner the organs of the gentile constitution were gradually torn away from their roots in the nation, tribe, phratry and gens, and the whole gentile order reversed into its antithesis. the organization of tribes for the purpose of the free administration of affairs was turned into an organization for plundering and oppressing their neighbors. the organs of gentilism changed from servants of the public will to independent organs of rule oppressing their own people. this could not have happened, if the greed for wealth had not divided the gentiles into rich and poor; if the "difference of property in a gens had not changed the community of interest into antagonism of the gentiles" (karl marx); and if the extension of slavery had not begun by branding work for a living as slavish and more ignominious than plundering. * * * * * we have now reached the threshold of civilization. this stage is inaugurated by a new progress in the division of labor. in the lower stage of barbarism production was carried on for use only; any acts of exchange were confined to single cases when a surplus was accidentally realized. in the middle stage of barbarism we find that the possession of cattle gave a regular surplus to the nomadic nations with sufficiently large herds. at the same time there was a division of labor between nomadic nations and backward nations without herds. the existence of two different stages of production side by side furnished the conditions necessary for a regular exchange. the upper stage of barbarism introduced a new division of labor between agriculture and handicrafts, resulting in the production of a continually increasing amount of commodities for the special purpose of exchange, so that exchange between individuals became a vital function of society. civilization strengthened and intensified all the established divisions of labor, especially by rendering the contrast between city and country more pronounced. either the town may have the economic control over the country, as during antiquity, or vice versa, as in the middle ages. a third division of labor was added by civilization: it created a class that did not take part in production, but occupied itself merely with the exchange of products--the merchants. all former attempts at class formation were exclusively concerned with production. they divided the producers into directors and directed, or into producers on a more or less extensive scale. but here a class appears for the first time that captures the control of production in general and subjugates the producers to its rule, without taking the least part in production. a class that makes itself the indispensable mediator between two producers and exploits them both under the pretext of saving them the trouble and risk of exchange, of extending the markets for their products to distant regions, and of thus becoming the most useful class in society; a class of parasites, genuine social ichneumons, that skim the cream off production at home and abroad as a reward for very insignificant services; that rapidly amass enormous wealth and gain social influence accordingly; that for this reason reap ever new honors and ever greater control of production during the period of civilization, until they at last bring to light a product of their own--periodical crises in industry. at the stage of production under discussion, our young merchant class had no inkling as yet of the great future that was in store for them. but they continued to organize, to make themselves invaluable, and that was sufficient for the moment. at the same time metal coins came into use, and through them a new device for controlling the producers and their products. the commodity of commodities that was hiding all other commodities in its mysterious bosom had been discovered, a charm that could be transformed at will into any desirable or coveted thing. whoever held it in his possession had the world of production at his command. and who had it above all others? the merchant. in his hands the cult of money was safe. he took care to make it plain that all commodities, and hence all producers, must prostrate themselves in adoration before money. he proved by practice that all other forms of wealth are reduced to thin wraiths before this personification of riches. never again did the power of money show itself in such primordial brutality and violence as in its youthful days. after the sale of commodities for money came the borrowing of money, resulting in interest and usury. and no legislation of any later period stretches the debtor so mercilessly at the feet of the speculating creditor as the antique grecian and roman codes--both of them spontaneous products of habit, without any other than economic pressure. the wealth in commodities and slaves was now further increased by large holdings in land. the titles of the individuals to the lots of land formerly assigned to them by the gens or tribe had become so well established, that these lots were now owned and inherited. what the individuals had most desired of late was the liberation from the claim of the gentiles to their lots, a claim which had become a veritable fetter for them. they were rid of this fetter--but soon after they were also rid of their lots. the full, free ownership of the soil implied not only the possibility of uncurtailed possession, but also of selling the soil. as long as the soil belonged to the gens, this was impossible. but when the new land owner shook off the chains of the priority claim of the gens and tribe, he also tore the bond that had so long tied him indissolubly to the soil. what that meant was impressed on him by the money invented simultaneously with the advent of private property in land. the soil could now become a commodity to be bought and sold. hardly had private ownership of land been introduced, when the mortgage put in its appearance (see athens). as hetaerism and prostitution clung to the heels of monogamy, so does from now on the mortgage to private ownership in land. you have clamored for free, full, saleable land. well, then, there you have it--tu l'as voulu, georges dandin; it was your own wish, george dandin. industrial expansion, money, usury, private land, and mortgage thus progressed with the concentration and centralization of wealth in the hands of a small class, accompanied by the increasing impoverishment of the masses and the increasing mass of paupers. the new aristocracy of wealth, so far as it did not coincide with the old tribal nobility, forced the latter permanently into the background (in athens, in rome, among the germans). and this division of free men into classes according to their wealth was accompanied, especially in greece, by an enormous increase in the number of slaves[38] whose forced labor formed the basis on which the whole superstructure of society was reared. let us now see what became of the gentile constitution through this revolution of society. gentilism stood powerless in the face of the new elements that had grown without its assistance. it was dependent on the condition that the members of a gens, or of a tribe, should live together in the same territory and be its exclusive inhabitants. that had long ceased to be the case. gentes and tribes were everywhere hopelessly intermingled, slaves, clients, and foreigners lived among citizens. the capacity for settling down permanently which had only been acquired near the end of the middle stage of barbarism, was time and again sidetracked by the necessity of changing the abode according to the dictates of commerce, different occupations and the transfer of land. the members of the gentile organizations could no longer meet for the purpose of taking care of their common interests. only matters of little importance, such as religious festivals, were still observed in an indifferent way. beside the wants and interests for the care of which the gentile organs were appointed and fitted, new wants and interests had arisen from the revolution of the conditions of existence and the resulting change in social classification. these new wants and interests were not only alien to the old gentile order, but thwarted it in every way. the interests of the craftsmen created by division of labor, and the special necessities of a town differing from those of the country, required new organs. but every one of these groups was composed of people from different gentes, phratries, and tribes; they included even strangers. hence the new organs necessarily had to form outside of the gentile constitution. but by the side of it meant against it. and again, in every gentile organization the conflict of interests made itself felt and reached its climax by combining rich and poor, usurers and debtors, in the same gens and tribe. there was furthermore the mass of inhabitants who were strangers to the gentiles. these strangers could become very powerful, as in rome, and they were too numerous to be gradually absorbed by the gentes and tribes. the gentiles confronted these masses as a compact body of privileged individuals. what had once been a natural democracy, had been transformed into an odious aristocracy. the gentile constitution had grown out of a society that did not know any internal contradictions, and it was only adapted to such a society. it had no coërcive power except public opinion. but now a society had developed that by force of all its economic conditions of existence divided humanity into freemen and slaves, and exploiting rich and exploited poor. a society that not only could never reconcile these contradictions, but drove them ever more to a climax. such a society could only exist by a continual open struggle of all classes against one another, or under the supremacy of a third power that under a pretense of standing above the struggling classes stifled their open conflict and permitted a class struggle only on the economic field, in a so-called "legal" form. gentilism had ceased to live. it was crushed by the division of labor and by its result, the division of society into classes. it was replaced by the state. * * * * * in preceding chapters we have shown by three concrete examples the three main forms in which the state was built up on the ruins of gentilism. athens represented the simplest, the classic type: the state grew directly and mainly out of class divisions that developed within gentile society. in rome the gentile organization became an exclusive aristocracy amid a numerous plebs of outsiders who had only duties, but no rights. the victory of the plebs burst the old gentile order asunder and erected on its remains the state which soon engulfed both gentile aristocracy and plebs. finally, among the german conquerors of the roman empire, the state grew as a direct result of the conquest of large foreign territories which the gentile constitution was powerless to control. but this conquest did not necessitate either a serious fight with the former population or a more advanced division of labor. conquerors and conquered were almost in the same stage of economic development, so that the economic basis of society remained undisturbed. hence gentilism could preserve for many centuries an unchanged territorial character in the form of mark communes, and even rejuvenate itself in the nobility and patrician families of later years, or in the peasantry, as e. g. in dithmarsia.[39] the state, then, is by no means a power forced on society from outside; neither is it the "realization of the ethical idea," "the image and the realization of reason," as hegel maintains. it is simply a product of society at a certain stage of evolution. it is the confession that this society has become hopelessly divided against itself, has entangled itself in irreconcilable contradictions which it is powerless to banish. in order that these contradictions, these classes with conflicting economic interests, may not annihilate themselves and society in a useless struggle, a power becomes necessary that stands apparently above society and has the function of keeping down the conflicts and maintaining "order." and this power, the outgrowth of society, but assuming supremacy over it and becoming more and more divorced from it, is the state. the state differs from gentilism in that it first divides its members by territories. as we have seen, the old bonds of blood kinship uniting the gentile bodies had become inefficient, because they were dependent on the condition, now no longer a fact, that all gentiles should live on a certain territory. the territory was the same; but the human beings had changed. hence the division by territories was chosen as the point of departure, and citizens had to exercise their rights and duties wherever they chose their abode without regard to gens and tribe. this organization of inhabitants by localities is a common feature of all states. it seems natural to us now. but we have seen what long and hard fighting was required before it could take, in athens and rome, the place of the old organization by blood kinship. in the second place, the state created a public power of coërcion that did no longer coincide with the old self-organized and armed population. this special power of coërcion is necessary, because a self-organized army of the people has become impossible since the division of society into classes took place. for the slaves belonged also to society. the 90,000 citizens of athens formed only a privileged class compared to the 365,000 slaves. the popular army of the athenian democracy was an aristocratic public power designed to keep the slaves down. but we have seen that a police force became also necessary to maintain order among the citizens. this public power of coërcion exists in every state. it is not composed of armed men alone, but has also such objects as prisons and correction houses attached to it, that were unknown to gentilism. it may be very small, almost infinitesimal, in societies with feebly developed class antagonisms and in out of the way places, as was once the case in certain regions of the united states. but it increases in the same ratio in which the class antagonisms become more pronounced, and in which neighboring states become larger and more populous. a conspicuous example is modern europe, where the class struggles and wars of conquest have nursed the public power to such a size that it threatens to swallow the whole society and the state itself. in order to maintain this public power, contributions of the citizens become necessary--the taxes. these were absolutely unknown in gentile society. but to-day we get our full measure of them. as civilization makes further progress, these taxes are no longer sufficient to cover public expenses. the state makes drafts on the future, contracts loans, public debts. old europe can tell a story of them. in possession of the public power and of the right of taxation, the officials in their capacity as state organs are now exalted above society. the free and voluntary respect that was accorded to the organs of gentilism does not satisfy them any more, even if they might have it. representatives of a power that is divorced from society, they must enforce respect by exceptional laws that render them specially sacred and inviolable.[40] the lowest police employee of the civilized state has more "authority" than all the organs of gentilism combined. but the mightiest prince and the greatest statesman or general of civilization may look with envy on the spontaneous and undisputed esteem that was the privilege of the least gentile sachem. the one stands in the middle of society, the other is forced to assume a position outside and above it. the state is the result of the desire to keep down class conflicts. but having arisen amid these conflicts, it is as a rule the state of the most powerful economic class that by force of its economic supremacy becomes also the ruling political class and thus acquires new means of subduing and exploiting the oppressed masses. the antique state was, therefore, the state of the slave owners for the purpose of holding the slaves in check. the feudal state was the organ of the nobility for the oppression of the serfs and dependent farmers. the modern representative state is the tool of the capitalist exploiters of wage labor. at certain periods it occurs exceptionally that the struggling classes balance each other so nearly that the public power gains a certain degree of independence by posing as the mediator between them. the absolute monarchy of the seventeenth and eighteenth century was in such a position, balancing the nobles and the burghers against one another. so was the bonapartism of the first, and still more of the second, empire, playing the proletariat against the bourgeoisie and vice versa. the latest performance of this kind, in which ruler and ruled appear equally ridiculous, is the new german empire of bismarckian make, in which capitalists and laborers are balanced against one another and equally cheated for the benefit of the degenerate prussian cabbage junkers.[41] in most of the historical states, the rights of the citizens are differentiated according to their wealth. this is a direct confirmation of the fact that the state is organized for the protection of the possessing against the non-possessing classes. the athenian and roman classification by incomes shows this. it is also seen in the medieval state of feudalism in which the political power depended on the quantity of real estate. it is again seen in the electoral qualifications of the modern representative state. the political recognition of the differences in wealth is by no means essential. on the contrary, it marks a low stage of state development. the highest form of the state, the democratic republic, knows officially nothing of property distinctions.[42] it is that form of the state which under modern conditions of society becomes more and more an unavoidable necessity. the last decisive struggle between proletariat and bourgeoisie can only be fought out under this state form.[43] in such a state, wealth exerts its power indirectly, but all the more safely. this is done partly in the form of direct corruption of officials, after the classical type of the united states, or in the form of an alliance between government and bankers which is established all the more easily when the public debt increases and when corporations concentrate in their hands not only the means of transportation, but also production itself, using the stock exchange as a center. the united states and the latest french republic are striking examples, and good old switzerland has contributed its share to illustrate this point. that a democratic republic is not necessary for this fraternal bond between stock exchange and government is proved by england and last, not least, germany, where it is doubtful whether bismarck or bleichroeder was more favored by the introduction of universal suffrage.[44] the possessing class rules directly through universal suffrage. for as long as the oppressed class, in this case the proletariat, is not ripe for its economic emancipation, just so long will its majority regard the existing order of society as the only one possible, and form the tail, the extreme left wing, of the capitalist class. but the more the proletariat matures toward its self-emancipation, the more does it constitute itself as a separate class and elect its own representatives in place of the capitalists. universal suffrage is the gauge of the maturity of the working class. it can and will never be anything else but that in the modern state. but that is sufficient. on the day when the thermometer of universal suffrage reaches its boiling point among the laborers, they as well as the capitalists will know what to do. the state, then, did not exist from all eternity. there have been societies without it, that had no idea of any state or public power. at a certain stage of economic development, which was of necessity accompanied by a division of society into classes, the state became the inevitable result of this division. we are now rapidly approaching a stage of evolution in production, in which the existence of classes has not only ceased to be a necessity, but becomes a positive fetter on production. hence these classes must fall as inevitably as they once arose. the state must irrevocably fall with them. the society that is to reorganize production on the basis of a free and equal association of the producers, will transfer the machinery of state where it will then belong: into the museum of antiquities by the side of the spinning wheel and the bronze ax. * * * * * civilization is, as we have seen, that stage of society, in which the division of labor, the resulting exchange between individuals, and the production of commodities combining them, reach their highest development and revolutionize the whole society. the production of all former stages of society was mainly collective, and consumption was carried on by direct division of products within more or less small communes. this collective production was confined within the narrowest limits. but it implied the control of production and of the products by the producers. they knew what became of their product: it did not leave their hands until it was consumed by them. as long as production moved on this basis, it could not grow beyond the control of the producers, and it could not create any strange ghostly forces against them. under civilization, however, this is the inevitable rule. into the simple process of production, the division of labor was gradually interpolated. it undermined the communism of production and consumption, it made the appropriation of products by single individuals the prevailing rule, and thus introduced the exchange between individuals, in the manner mentioned above. gradually, the production of commodities became the rule. this mode of production for exchange, not for home consumption, necessarily passes the products on from hand to hand. the producer gives his product away in exchange. he does no longer know what becomes of it. with the advent of money and of the trader who steps in as a middleman between the producers, the process of exchange becomes still more complicated. the fate of the products becomes still more uncertain. the number of merchants is great and one does not know what the other is doing. the products now pass not only from hand to hand, but also from market to market. the producers have lost the control of the aggregate production in their sphere of life, and the merchants have not yet acquired this control. products and production become the victims of chance. but chance is only one pole of an interrelation, the other pole of which is called necessity. in nature, where chance seems to reign also, we have long ago demonstrated the innate necessity and law that determines the course of chance on every line. but what is true of nature, holds also good of society. whenever a social function or a series of social processes become too powerful for the control of man, whenever they grow beyond the grasp of man and seem to be left to mere chance, then the peculiar and innate laws of such processes shape the course of chance with increased elementary necessity. such laws also control the vicissitudes of the production and exchange of commodities. for the individual producer and exchanger, these laws are strange, and often unknown, forces, the nature of which must be laboriously investigated and ascertained. these economic laws of production are modified by the different stages of this form of production. but generally speaking, the entire period of civilization is dominated by these laws. to this day, the product controls the producer. to this day, the aggregate production of society is managed, not on a uniform plan, but by blind laws, that rule with elementary force and find their final expression in the storms of periodical commercial crises. we have seen that human labor power is enabled at a very early stage of production to produce considerably more than is needed to maintain the producer. we have found that this stage coïncided in general with the first appearance of the division of labor and of exchange between individuals. now, it was not long before the great truth was discovered that man may himself be a commodity, and that human labor power may be exchanged and exploited by transforming a man into a slave. hardly had exchange between men been established, when men themselves were also exchanged. the active asset became a passive liability, whether man wanted it or not. slavery, which reaches its highest development in civilization, introduced the first great division of an exploited and an exploiting class into society. this division continued during the whole period of civilization. slavery is the first form of exploitation, characteristic of the antique world. then followed feudalism in the middle ages, and wage labor in recent times. these are the three great forms of servitude, characteristic of the three great epochs of civilization. their invariable mark is either open or, in modern times, disguised slavery. the stage of commodity production introducing civilization is marked economically by the introduction of (1) metal coins and, thus, of money as capital, of interest, and of usury; (2) merchants as middlemen between producers; (3) private property and mortgage; (4) slave labor as the prevailing form of production. the form of the family corresponding to civilization and becoming its pronounced custom is monogamy, the supremacy of man over woman, and the monogamous family as the economic unit of society. the aggregation of civilized society is the state, which throughout all typical periods is the state of the ruling class, and in all cases mainly a machine for controlling the oppressed and exploited class. civilization is furthermore characterized on one side by the permanent introduction of the contrast between city and country as the basis of the entire division of social labor; on the other side by the introduction of the testament by which the property holder is enabled to dispose of his property beyond the hour of his death. this institution is a direct blow at the gentile constitution, and was unknown in athens until the time of solon. in rome it was introduced very early, but we do not know when.[45] in germany it was originated by the priests in order that the honest german might bequeath his property to the church without any interference. with this fundamental constitution, civilization had accomplished things for which the old gentile society was no match whatever. but these exploits were accomplished by playing on the most sordid passions and instincts of man, and by developing them at the expense of all his other gifts. barefaced covetousness was the moving spirit of civilization from its first dawn to the present day; wealth, and again wealth, and for the third time wealth; wealth, not of society, but of the puny individual, was its only and final aim. if nevertheless the advanced development of science, and at repeated times the highest flower of art, fell into its lap, this was only due to the fact that without them the highest emoluments of modern wealth would have been missing. exploitation of one class by another being the basis of civilization, its whole development involves a continual contradiction. every progress of production is at the same time a retrogression in the condition of the oppressed class, that is of the great majority. every benefit for one class is necessarily an evil for the other, every new emancipation of one class a new oppression for the other. the most drastic proof of this is furnished by the introduction of machinery, the effects of which are well known to-day. and while there is hardly any distinction between rights and duties among barbarians, as we have seen, civilization makes the difference between these two plain even to the dullest mind. for now one class has nearly all the rights, the other class nearly all the duties. but this is not admitted. what is good for the ruling class, is alleged to be good for the whole of society with which the ruling class identifies itself. the more civilization advances, the more it is found to cover with the cloak of charity the evils necessarily created by it, to excuse them or to deny their existence, in short to introduce a conventional hypocrisy that culminates in the declaration: the exploitation of the oppressed class is carried on by the exploiting class solely in the interest of the exploited class itself. and if the latter does not recognize this, but even becomes rebellious, it is simply the worst ingratitude to its benefactors, the exploiters.[46] and now, in conclusion, let me add morgan's judgment of civilization (ancient society, page 552): "since the advent of civilization, the outgrowth of property has been so immense, its forms so diversified, its uses so expanding and its management so intelligent in the interest of its owners that it has become, on the part of the people, an unmanageable power. the human mind stands bewildered in the presence of its own creation. the time will come, nevertheless, when human intelligence will rise to the mastery over property, and define the relations of the state to the property it protects, as well as the obligations and the limits of the rights of its owners. the interests of society are paramount to individual interests, and the two must be brought into just and harmonious relations. a mere property career is not the final destiny of mankind, if progress is to be the law of the future as it has been of the past. the time which has passed away since civilization began is but a fragment of the past duration of man's existence; and but a fragment of the ages yet to come. the dissolution of society bids fair to become the termination of a career of which property is the end and aim, because such a career contains the elements of self-destruction. democracy in government, brotherhood in society, equality in rights and privileges, and universal education, foreshadow the next higher plane of society to which experience, intelligence and knowledge are steadily tending. it will be a revival, in a higher form, of the liberty, equality and fraternity of the ancient gentes." the end. footnotes: [37] author's note. especially on the northwest coast of america; see bancroft. among the haidahs of the queen charlotte islands some households gather as many as 700 members under one roof. among the nootkas whole tribes lived under one roof. [38] author's note. the number of slaves in athens was 365,000. in corinth it was 460,000 at the most flourishing time, and 470,000 in aegina; in both cases ten times the number of free citizens. [39] author's note. the first historian who had at least a vague conception of the nature of the gens was niebuhr, thanks to his familiarity with the dithmarsian families. the same source, however, is also responsible for his errors. [40] translator's note. the recent demand for a law declaring the person of the u. s. president sacred above all other representatives of the public power and making an assault on him an exceptional crime is a very good case in point. [41] translator's note. "junker" is a contemptuous term for the land-owning nobility. [42] translator's note. in the united states, the poll tax is an indirect property qualification, as it strikes those who, through lack of employment, sickness or invalidity, are unable to spare the amount, however small, of this tax. furthermore, the laws requiring a continuous residence in the precinct, the town, the county, and the state as a qualification for voters have the effect of disqualifying a great number of workingmen who are forced to change their abode according to their opportunities for employment. and the educational qualifications which especially the southern states are rigidly enforcing tend to disfranchise the great mass of the negroes, who form the main body of the working class in those states. [43] translator's note. in belgium, where the proletariat is now on the verge of gaining political supremacy, the battle cry is: "s. u. et r. p." (suffrage universelle et representation proportionelle). [44] translator's note. suffrage in germany, though universal for men is by no means equal, but founded on property qualifications. in prussia, e. g., a three class system of voting is in force which is best illustrated by the following figures: in 1898 there were 6,447,253 voters; 3.26 per cent belonged to the first class, 11.51 per cent to the second class, and 85.35 per cent to the third class. but the 947,218 voters of the first and second classes had twice as many votes as the five and a half millions of the third class. [45] author's note. lassalle's "system of acquired rights" argues in its second part mainly the proposition that the roman testament is as old as rome itself, and that there has never been in roman history "a time without a testament." according to him, the testament had its origin in pre-roman times in the cult of the departed. lassalle, as a convinced hegelian of the old school, derives the provisions of the roman law, not from the social condition of the romans, but from the "speculative conception" of will, and thus arrives at this totally anti-historic conclusion. this is not to be wondered at in a book that draws from the same speculative conception the conclusion that the transfer of property was purely a side issue in roman inheritance. lassalle not only believed in the illusions of roman jurists, especially of the earlier ones, but he outstripped their fancy. [46] author's note. i first intended to place the brilliant critique of civilization, scattered through the works of fourier, by the side of morgan's and of my own. unluckily i cannot spare the time. i only wish to remark that fourier already considers monogamy and private property in land the main characteristics of civilization, and that he calls them a war of the rich against the poor. we also find with him the deep perception that the individual families (les families incoherentes) are the economic units of all faulty societies divided by opposing interests. everyman, i will go with thee, and be thy guide, in thy most need to go by thy side. this is no. 734 of everyman's library. a list of authors and their works in this series will be found at the end of this volume. the publishers will be pleased to send freely to all applicants a separate, annotated list of the library. j. m. dent & sons limited 10-13 bedford street london w.c.2 e. p. dutton & co. inc. 286-302 fourth avenue new york everyman's library edited by ernest rhys history ancient law by sir henry james sumner maine introduction by prof. j. h. morgan sir henry james sumner maine, the son of a doctor, born 1822 in india. educated at christ's hospital and pembroke college, cambridge. in 1847 professor of civil law at cambridge; 1850, called to the bar. member of indian council for seven years. died at cannes, 1888. ancient law [illustration] sir henry maine london: j. m. dent & sons ltd. new york: e. p. dutton & co. inc. _all rights reserved made in great britain at the temple press letchworth and decorated by eric ravilious for j. m. dent & sons ltd. aldine house bedford st. london first published in this edition 1917 reprinted 1927, 1931, 1936_ introduction no one who is interested in the growth of human ideas or the origins of human society can afford to neglect maine's _ancient law_. published some fifty-six years ago it immediately took rank as a classic, and its epoch-making influence may not unfitly be compared to that exercised by darwin's _origin of species_. the revolution effected by the latter in the study of biology was hardly more remarkable than that effected by maine's brilliant treatise in the study of early institutions. well does one of maine's latest and most learned commentators say of his work that "he did nothing less than create the natural history of law." this is only another way of saying that he demonstrated that our legal conceptions--using that term in its largest sense to include social and political institutions--are as much the product of historical development as biological organisms are the outcome of evolution. this was a new departure, inasmuch as the school of jurists, represented by bentham and austin, and of political philosophers, headed by hobbes, locke, and their nineteenth-century disciples, had approached the study of law and political society almost entirely from an unhistoric point of view and had substituted dogmatism for historical investigation. they had read history, so far as they troubled to read it at all, "backwards," and had invested early man and early society with conceptions which, as a matter of fact, are themselves historical products. the jurists, for example, had in their analysis of legal sovereignty postulated the commands of a supreme lawgiver by simply ignoring the fact that, in point of time, custom precedes legislation and that early law is, to use maine's own phrase, "a habit" and not a conscious exercise of the volition of a lawgiver or a legislature. the political philosophers, similarly, had sought the origin of political society in a "state of nature"--humane, according to locke and rousseau, barbarous, according to hobbes--in which men freely subscribed to an "original contract" whereby each submitted to the will of all. it was not difficult to show, as maine has done, that contract--_i.e._ the recognition of a mutual agreement as binding upon the parties who make it--is a conception which comes very late to the human mind. but maine's work covers much wider ground than this. it may be summed up by saying that he shows that early society, so far as we have any recognisable legal traces of it, begins with the group, not with the individual. this group was, according to maine's theory, the family--that is to say the family as resting upon the patriarchal power of the father to whom all its members, wife, sons, daughters, and slaves, were absolutely subject. this, the central feature of maine's speculation, is worked out with infinite suggestiveness and great felicity of style in chapter v. ("primitive society and ancient law") of the present work, and his chief illustrations are sought in the history of roman law. the topics of the other chapters are selected largely with a view to supplying confirmation of the theory in question and, as we shall see in a moment, maine's later works do but serve to carry the train of reasoning a step further by the use of the comparative method in invoking evidence from other sources, notably from irish and hindu law. let us, however, confine ourselves for the moment to "ancient law." maine works out the implications of his theory by showing that it, and it alone, can serve to explain such features of early roman law as agnation, _i.e._ the tracing of descent exclusively through males, and adoption, _i.e._ the preservation of the family against the extinction of male heirs. the perpetual tutelage of women is the consequence of this position. moreover, all the members of the family, except its head, are in a condition best described as _status_: they have no power to acquire property, or to bequeath it, or to enter into contracts in relation to it. the traces of this state of society are clearly visible in the pages of that classical text-book of roman law, the _institutes_ of justinian,[1] compiled in the sixth century a.d., though equally visible is the disintegration wrought in it by the reforming activity of the praetor's edicts. that reformation followed the course of a gradual emancipation of the members of the family, except those under age, from the despotic authority of the father. this gradual substitution of the individual for the family was effected in a variety of ways, but in none more conspicuously than by the development of the idea of contract, _i.e._ of the capacity of the individual to enter into independent agreements with strangers to his family-group by which he was legally bound--an historical process which maine sums up in his famous aphorism that the movement of progressive societies has hitherto been a movement from status to contract. in the chapters on the early history of wills, property, and contract, maine supports his theory by showing that it is the key which unlocks many, if not all, of the problems which those topics present. the chapter on wills--particularly the passage in which he explains what is meant by universal succession--is a brilliant example of maine's analytic power. he shows that a will--in the sense of a secret and revocable disposition of property only taking effect after the death of the testator--is a conception unknown to early law, and that it makes its first appearance as a means of transmitting the exercise of domestic sovereignty, the transfer of the property being only a subsidiary feature; wills only being permitted, in early times, in cases where there was likely to be a failure of proper heirs. the subsequent popularity of wills, and the indulgence with which the law came to regard them, were due to a desire to correct the rigidity of the patria potestas, as reflected in the law of intestate succession, by giving free scope to natural affection. in other words, the conception of relationship as reckoned only through males, and as resting on the continuance of the children within their father's power, gave way, through the instrumentality of the will, to the more modern and more natural conception of relationship. in the chapter on property maine again shows that the theory of its origin in occupancy is too individualistic and that not separate ownership but joint ownership is the really archaic institution. the father was in some sense (we must avoid importing modern terms) the trustee of the joint property of the family. here maine makes an excursion into the fields of the early village community, and has, too, to look elsewhere than to rome, where the village community had already been transformed by coalescence into the city-state. he therefore seeks his examples from india and points to the indian village as an example of the expansion of the family into a larger group of co-proprietors, larger but still bearing traces of its origin to the patriarchal power. and, to quote his own words, "the most important passage in the history of private property is its gradual separation from the co-ownership of kinsmen." the chapter on contract, although it contains some of maine's most suggestive writing, and the chapter on delict and crime, have a less direct bearing on his main thesis except in so far as they go to show that the reason why there is so little in early law of what we call civil, as distinct from criminal, law, and in particular of the law of contract, is to be found in the fact that, in the infancy of society, the law of persons, and with it the law of civil rights, is merged in the common subjection to paternal power. such, putting it in the simplest possible language, is the main argument of _ancient law_. the exigencies of space and of simplicity compel me to pass by, to a large extent, most of the other topics with which maine deals--the place of custom, code, and fiction in the development of early law, the affiliation of international law to the _jus gentium_ and the law of nature, the origins of feudalism and of primogeniture, the early history of delict and crime, and that most remarkable and profound passage in which maine shows the heavy debt of the various sciences to roman law and the influence which it has exerted on the vocabulary of political science, the concepts of moral philosophy, and the doctrines of theology. i must confine myself to two questions: how far did maine develop or modify in his subsequent writings the main thesis of _ancient law_? to what extent has this thesis stood the test of the criticism and research of others? as regards the first point, it is to be remembered that _ancient law_ is but the first, though doubtless the most important, of a whole series of works by its author on the subject of early law. it was followed at intervals by three volumes: _village communities in the east and west_, _early institutions_, and _early law and_ _custom_. in the first of these he dealt with a subject which has excited an enormous degree of attention and not a little controversy among english, french, german, and russian scholars,[2] amounting as it does to nothing less than an investigation into the origin of private property in land. the question has been put in various forms: did it commence with joint (or, as some would put it, less justifiably, communal or corporate) ownership or with individual ownership, and again was the village community free or servile? it is now pretty generally recognised that there was more than one type, though common cultivation was doubtless a feature of them all, and even in india there were at least two types, of which the one presenting several, as opposed to communal, ownership is not the less ancient. but it may well be that, as maitland so often pointed out, much of the controversy has been literally an anachronism; that is to say, that nineteenth-century men have been asking the early ages questions which they could not answer and reading back into early history distinctions which are themselves historical products. ownership is itself a late abstraction developed out of use. we may say with some certainty that family "ownership" preceded individual ownership, but in what sense there was communal ownership by a whole village it is not so easy to say. maine was on surer ground when, as in his studies of irish and hindu law, he confined himself to the more immediate circle of the family group. in his _early institutions_ he subjects the brehon laws of early ireland to a suggestive examination as presenting an example of celtic law largely unaffected by roman influences. he there shows, as he has shown in _ancient law_, that in early times the only social brotherhood recognised was that of kinship, and that almost every form of social organisation, tribe, guild, and religious fraternity, was conceived of under a similitude of it. feudalism converted the village community, based on a real or assumed consanguinity of its members, into the fief in which the relations of tenant and lord were those of contract, while those of the unfree tenant rested on status. in his _early law and custom_ he pursues much the same theme by an examination of hindu law as presenting a peculiarly close implication of early law with religion. here he devotes his attention chiefly to ancestor-worship, a subject which about this time had engaged the attention, as regards its greek and roman forms, of that brilliant frenchman, fustel de coulanges, whose monograph _la cité antique_ is now a classic. as is well known, the right of inheriting a dead man's property and the duty of performing his obsequies are co-relative to this day in hindu law, and his investigation of this subject brings maine back to the subject of the patriarchal power. he points out that both worshipper and the object of worship were exclusively males, and concludes that it was the power of the father which generated the practice of worshipping him, while this practice in turn, by the gradual admission of women to participate in the ceremonies, gradually acted as a solvent upon the power itself. the necessity of finding some one to perform these rites, on failure of direct male heirs, marked the beginning of the recognition of a right in women to inherit. the conception of the family becomes less intense and more extensive. these discussions brought maine, in chapter vii. of _early law and custom_, to reconsider the main theory of _ancient law_ in the light of the criticism to which it had been exposed, and every reader of _ancient law_ who desires to understand maine's exact position in regard to the scope of his generalisations should read for himself the chapter in the later work entitled "theories of primitive society." his theory of the patriarchal power had been criticised by two able and industrious anthropologists, m'lennan and morgan, who, by their investigation of "survivals" among barbarous tribes in our own day, had arrived at the conclusion that, broadly speaking, the normal process through which society had passed was not patriarchal but "matriarchal," _i.e._ understanding by that term a system in which descent is traced through females. it would take up far too much space to enter into this controversy in detail. it is sufficient to say that the counter-theory rested on the assumption that society originated not in families, based on the authority of the father and relationship through him, but in promiscuous hordes among whom the only certain fact, and, consequently, the only recognised basis of relationship, was maternity. maine's answer to this was that his generalisations as to the prevalence of the patriarchal power were confined to indo-european races, and that he did not pretend to dogmatise about other races, also that he was dealing not with all societies but all that had any permanence. he argues that the promiscuous horde, where and when it is found, is to be explained as an abnormal case of retrogression due to a fortuitous scarcity of females resulting in polyandry, and he opposes to the theory of its predominance the potency of sexual jealousy which might serve as only another name for the patriarchal power. on the whole the better opinion is certainly with maine. his theory, at any rate, alone accords with a view of society so soon as it is seen to possess any degree of civilisation and social cohesion. it will be seen that maine's work, like that of most great thinkers, presents a singular coherence and intellectual elegance. it is distinguished also by an extraordinary wide range of vision. he lays under contribution with equal felicity and suggestiveness the old testament, the homeric poems, the latin dramatists, the laws of the barbarians, the sacerdotal laws of the hindus, the oracles of the brehon caste, and the writings of the roman jurists. in other words, he was a master of the comparative method. few writers have thrown so much light on the development of the human mind in its social relations. we know now--a hundred disciples have followed in maine's footsteps and applied his teaching--how slow is the growth of the human intellect in these matters, with what painful steps man learns to generalise, how convulsively he clings in the infancy of civilisation to the formal, the material, the realistic aspects of things, how late he develops such abstractions as "the state." in all this maine first showed the way. as sir frederick pollock has admirably put it- nowadays it may be said that "all have got the seed," but this is no justification for forgetting who first cleared and sowed the ground. we may till fields that the master left untouched, and one man will bring a better ox to yoke to the plough, and another a worse; but it is the master's plough still. we may conclude with some remarks on maine's views of the contemporary problems of political society. maine was what, for want of a better term, may be called a conservative, and, indeed, it may be doubted whether, with the single exception of burke, any english writer has done more to provide english conservatives with reasons for the faith that is in them. he has set forth his views in a collection of polemical essays under the title of _popular government_, which were given to the world in book form in 1885. he viewed the advent of democracy with more distrust than alarm--he appears to have thought it a form of government which could not last--and he has an unerring eye for its weaknesses.[3] indeed, his remarks on the facility with which democracy yields itself to manipulation by wire-pullers, newspapers, and demagogues, have found not a little confirmation in such studies of the actual working of democratic government as m. ostrogorski's _democracy and the organisation of political parties_. maine emphasised the tyranny of majorities, the enslavement of untutored minds by political catchwords, their susceptibility to "suggestion," their readiness to adopt vicarious opinion in preference to an intellectual exercise of their own volition. it is not surprising that the writer who had subjected the theories of the social contract to such merciless criticism sighed for a scientific analysis of political terms as the first step to clear thinking about politics. here he was on strong ground, but for such an analysis we have yet to wait.[4] he seems to have placed his hopes in the adoption of some kind of written constitution which, like the american prototype, would safeguard us from fundamental changes by the caprice of a single assembly. but this is not the place to pursue such highly debateable matters. enough if we say that the man who wishes to serve an apprenticeship to an intelligent understanding of the political society of the present cannot do better than begin by a careful study of maine's researches into the political society of the past. j.h. morgan. _note._--the reader who desires to study maine in the light of modern criticism is recommended to read sir f. pollock's "notes on maine's _ancient law_" (published by john murray at 2_s._ 6_d._, or, with the text, at 5_s._). the best short study of maine with which i am acquainted is the article by professor vinogradoff in the _law quarterly review_ for april 1904. the field of research covered by maine in his various writings is so vast that it is impossible to refer the reader, except at great length, to anything like an adequate list of later books on the subjects of his investigation. in addition to the works on the village community mentioned in a previous footnote, i may, however, refer the beginner to mr. edward jenks' little book on _the history of politics_ in dent's primers, to professor ashley's translation of a fragment of fustel de coulanges under the title of _the origin of property in land_, and to sir frederick pollock's brilliant little book, _the expansion of the common law_. the reader is also recommended to study mr. h.a.l. fisher's succinct survey of the contributions of maitland to legal history under the title of _f.w. maitland; an appreciation_ (cambridge university press). one of the most brilliant and ingenious studies of the origins of european civilisation is to be found in the work of the great german jurist, ihering, _die vorgeschichte der indo-europder_, translated into english under the title of _the early history of the indo-european races_ (sonnenschein, 1897). [1] the reader who desires to pursue the subject by reference to one of maine's chief authorities is recommended to read the translation of the _institutes_ by sandars. [2] english literature on the subject is best studied in maitland's _domesday book and beyond_, vinogradoff's _the growth of the manor_ and _villeinage in england_ (with an excellent historical introduction), and seebohm's _english village community_. [3] witness the characteristic sentence: "on the whole they [_i.e._ the studies of earlier society] suggest that the differences which, after ages of change, separate the civilised man from savage or barbarian, are not so great as the vulgar opinion would have them.... like the savage, he is a man of party with a newspaper for a totem ... and like a savage he is apt to make of his totem his god." [4] something of the kind was done many years ago by sir george cornewall lewis in his little book on the _use and abuse of political terms_. i have attempted to carry the task a step farther in an article which appeared in the form of a review of lord morley's "history and politics" in the _nineteenth century_ for march 1913. bibliography navis ornate atque armata in aquam deducitur (prize poem), 1842; the birth of the prince of wales (prize poem), 1842; cæsar ad rubiconem constitit (prize poem), 1842; memoir of h.f. hallam, 1851; roman law and legal education (essay), 1856; ancient law: its connection with the early history of society and its relation to modern ideas, 1861; short essays and reviews on the educational policy of the government of india, 1866; village communities in the east and west (lectures), 1871; the early history of the property of married women as collected from roman and hindoo law (lecture), 1873; the effects of observation of india on modern european thought (lecture), 1875; lectures on the early history of institutions, 1875; village communities, etc.; third ed. with other lectures and addresses, 1876; dissertations on early law and custom (selected from lectures), 1883; popular government (four essays), 1885; india [1837-1887] (in "the reign of queen victoria," ed. by thos. humphry ward, vol. i.), 1887; the whewell lectures: international law, 1887, 1888; ancient law (ed. with introduction and notes by sir frederick pollock), 1906; ancient law (allahabad ed., with introduction by k.c. banerji), 1912. contributions to: "morning chronicle," 1851; "cornhill magazine," 1871; "quarterly review," 1886; "saturday review," and "st. james's gazette." a brief memoir of the life of sir henry maine, by sir m.e. grant duff; with some of his indian speeches and minutes, selected by whitley stokes, 1892. preface the chief object of the following pages is to indicate some of the earliest ideas of mankind, as they are reflected in ancient law, and to point out the relation of those ideas to modern thought. much of the inquiry attempted could not have been prosecuted with the slightest hope of a useful result if there had not existed a body of law, like that of the romans, bearing in its earliest portions the traces of the most remote antiquity and supplying from its later rules the staple of the civil institutions by which modern society is even now controlled. the necessity of taking the roman law as a typical system has compelled the author to draw from it what may appear a disproportionate number of his illustrations; but it has not been his intention to write a treatise on roman jurisprudence, and he has as much as possible avoided all discussions which might give that appearance to his work. the space allotted in the third and fourth chapters to certain philosophical theories of the roman jurisconsults has been appropriated to them for two reasons. in the first place, those theories appear to the author to have had a wider and more permanent influence on the thought and action of the world than is usually supposed. secondly, they are believed to be the ultimate source of most of the views which have been prevalent, till quite recently, on the subjects treated of in this volume. it was impossible for the author to proceed far with his undertaking without stating his opinion on the origin, meaning, and value of those speculations. h.s.m. london, _january 1861_. contents chap. page i. ancient codes 1 ii. legal fictions 13 iii. law of nature and equity 26 iv. the modern history of the law of nature 43 v. primitive society and ancient law 67 vi. the early history of testamentary succession 101 vii. ancient and modern ideas respecting wills and successions 127 viii. the early history of property 144 ix. the early history of contract 179 x. the early history of delict and crime 216 index 235 chapter i ancient codes the most celebrated system of jurisprudence known to the world begins, as it ends, with a code. from the commencement to the close of its history, the expositors of roman law consistently employed language which implied that the body of their system rested on the twelve decemviral tables, and therefore on a basis of written law. except in one particular, no institutions anterior to the twelve tables were recognised at rome. the theoretical descent of roman jurisprudence from a code, the theoretical ascription of english law to immemorial unwritten tradition, were the chief reasons why the development of their system differed from the development of ours. neither theory corresponded exactly with the facts, but each produced consequences of the utmost importance. i need hardly say that the publication of the twelve tables is not the earliest point at which we can take up the history of law. the ancient roman code belongs to a class of which almost every civilised nation in the world can show a sample, and which, so far as the roman and hellenic worlds were concerned, were largely diffused over them at epochs not widely distant from one another. they appeared under exceedingly similar circumstances, and were produced, to our knowledge, by very similar causes. unquestionably, many jural phenomena lie behind these codes and preceded them in point of time. not a few documentary records exist which profess to give us information concerning the early phenomena of law; but, until philology has effected a complete analysis of the sanskrit literature, our best sources of knowledge are undoubtedly the greek homeric poems, considered of course not as a history of actual occurrences, but as a description, not wholly idealised, of a state of society known to the writer. however the fancy of the poet may have exaggerated certain features of the heroic age, the prowess of warriors and the potency of gods, there is no reason to believe that it has tampered with moral or metaphysical conceptions which were not yet the subjects of conscious observation; and in this respect the homeric literature is far more trustworthy than those relatively later documents which pretend to give an account of times similarly early, but which were compiled under philosophical or theological influences. if by any means we can determine the early forms of jural conceptions, they will be invaluable to us. these rudimentary ideas are to the jurist what the primary crusts of the earth are to the geologist. they contain, potentially, all the forms in which law has subsequently exhibited itself. the haste or the prejudice which has generally refused them all but the most superficial examination, must bear the blame of the unsatisfactory condition in which we find the science of jurisprudence. the inquiries of the jurist are in truth prosecuted much as inquiry in physics and physiology was prosecuted before observation had taken the place of assumption. theories, plausible and comprehensive, but absolutely unverified, such as the law of nature or the social compact, enjoy a universal preference over sober research into the primitive history of society and law; and they obscure the truth not only by diverting attention from the only quarter in which it can be found, but by that most real and most important influence which, when once entertained and believed in, they are enabled to exercise on the later stages of jurisprudence. the earliest notions connected with the conception, now so fully developed, of a law or rule of life, are those contained in the homeric words "themis" and "themistes." "themis," it is well known, appears in the later greek pantheon as the goddess of justice, but this is a modern and much developed idea, and it is in a very different sense that themis is described in the iliad as the assessor of zeus. it is now clearly seen by all trustworthy observers of the primitive condition of mankind that, in the infancy of the race, men could only account for sustained or periodically recurring action by supposing a personal agent. thus, the wind blowing was a person and of course a divine person; the sun rising, culminating, and setting was a person and a divine person; the earth yielding her increase was a person and divine. as, then, in the physical world, so in the moral. when a king decided a dispute by a sentence, the judgment was assumed to be the result of direct inspiration. the divine agent, suggesting judicial awards to kings or to gods, the greatest of kings, was _themis_. the peculiarity of the conception is brought out by the use of the plural. _themistes_, themises, the plural of _themis_, are the awards themselves, divinely dictated to the judge. kings are spoken of as if they had a store of "themistes" ready to hand for use; but it must be distinctly understood that they are not laws, but judgments. "zeus, or the human king on earth," says mr. grote, in his history of greece, "is not a lawmaker, but a judge." he is provided with themistes, but, consistently with the belief in their emanation from above, they cannot be supposed to be connected by any thread of principle; they are separate, isolated judgments. even in the homeric poems, we can see that these ideas are transient. parities of circumstance were probably commoner in the simple mechanism of ancient society than they are now, and in the succession of similar cases awards are likely to follow and resemble each other. here we have the germ or rudiment of a custom, a conception posterior to that of themistes or judgments. however strongly we, with our modern associations, may be inclined to lay down _à priori_ that the notion of a custom must precede that of a judicial sentence, and that a judgment must affirm a custom or punish its breach, it seems quite certain that the historical order of the ideas is that in which i have placed them. the homeric word for a custom in the embryo is sometimes "themis" in the singular--more often "dike," the meaning of which visibly fluctuates between a "judgment" and a "custom" or "usage." [greek: nomos], a law, so great and famous a term in the political vocabulary of the later greek society, does not occur in homer. this notion of a divine agency, suggesting the themistes, and itself impersonated in themis, must be kept apart from other primitive beliefs with which a superficial inquirer might confound it. the conception of the deity dictating an entire code or body of law, as in the case of the hindoo laws of menu, seems to belong to a range of ideas more recent and more advanced. "themis" and "themistes" are much less remotely linked with that persuasion which clung so long and so tenaciously to the human mind, of a divine influence underlying and supporting every relation of life, every social institution. in early law, and amid the rudiments of political thought, symptoms of this belief meet us on all sides. a supernatural presidency is supposed to consecrate and keep together all the cardinal institutions of those times, the state, the race, and the family. men, grouped together in the different relations which those institutions imply, are bound to celebrate periodically common rites and to offer common sacrifices; and every now and then the same duty is even more significantly recognised in the purifications and expiations which they perform, and which appear intended to deprecate punishment for involuntary or neglectful disrespect. everybody acquainted with ordinary classical literature will remember the _sacra gentilicia_, which exercised so important an influence on the early roman law of adoption and of wills. and to this hour the hindoo customary law, in which some of the most curious features of primitive society are stereotyped, makes almost all the rights of persons and all the rules of succession hinge on the due solemnisation of fixed ceremonies at the dead man's funeral, that is, at every point where a breach occurs in the continuity of the family. before we quit this stage of jurisprudence, a caution may be usefully given to the english student. bentham, in his _fragment on government_, and austin, in his _province of jurisprudence determined_, resolve every law into a _command_ of the lawgiver, _an obligation_ imposed thereby on the citizen, and a _sanction_ threatened in the event of disobedience; and it is further predicated of the _command_, which is the first element in a law, that it must prescribe, not a single act, but a series or number of acts of the same class or kind. the results of this separation of ingredients tally exactly with the facts of mature jurisprudence; and, by a little straining of language, they may be made to correspond in form with all law, of all kinds, at all epochs. it is not, however, asserted that the notion of law entertained by the generality is even now quite in conformity with this dissection; and it is curious that, the farther we penetrate into the primitive history of thought, the farther we find ourselves from a conception of law which at all resembles a compound of the elements which bentham determined. it is certain that, in the infancy of mankind, no sort of legislature, not even a distinct author of law, is contemplated or conceived of. law has scarcely reached the footing of custom; it is rather a habit. it is, to use a french phrase, "in the air." the only authoritative statement of right and wrong is a judicial sentence after the facts, not one presupposing a law which has been violated, but one which is breathed for the first time by a higher power into the judge's mind at the moment of adjudication. it is of course extremely difficult for us to realise a view so far removed from us in point both of time and of association, but it will become more credible when we dwell more at length on the constitution of ancient society, in which every man, living during the greater part of his life under the patriarchal despotism, was practically controlled in all his actions by a regimen not of law but of caprice. i may add that an englishman should be better able than a foreigner to appreciate the historical fact that the "themistes" preceded any conception of law, because, amid the many inconsistent theories which prevail concerning the character of english jurisprudence, the most popular, or at all events the one which most affects practice, is certainly a theory which assumes that adjudged cases and precedents exist antecedently to rules, principles, and distinctions. the "themistes" have too, it should be remarked, the characteristic which, in the view of bentham and austin, distinguishes single or mere commands from laws. a true law enjoins on all the citizens indifferently a number of acts similar in class or kind; and this is exactly the feature of a law which has most deeply impressed itself on the popular mind, causing the term "law" to be applied to mere uniformities, successions, and similitudes. a _command_ prescribes only a single act, and it is to commands, therefore, that "themistes" are more akin than to laws. they are simply adjudications on insulated states of fact, and do not necessarily follow each other in any orderly sequence. the literature of the heroic age discloses to us law in the germ under the "themistes" and a little more developed in the conception of "dike." the next stage which we reach in the history of jurisprudence is strongly marked and surrounded by the utmost interest. mr. grote, in the second part and second chapter of his history, has fully described the mode in which society gradually clothed itself with a different character from that delineated by homer. heroic kingship depended partly on divinely given prerogative, and partly on the possession of supereminent strength, courage, and wisdom. gradually, as the impression of the monarch's sacredness became weakened, and feeble members occurred in the series of hereditary kings, the royal power decayed, and at last gave way to the dominion of aristocracies. if language so precise can be used of the revolution, we might say that the office of the king was usurped by that council of chiefs which homer repeatedly alludes to and depicts. at all events from an epoch of kingly rule we come everywhere in europe to an era of oligarchies; and even where the name of the monarchical functions does not absolutely disappear, the authority of the king is reduced to a mere shadow. he becomes a mere hereditary general, as in lacedæmon, a mere functionary, as the king archon at athens, or a mere formal hierophant, like the _rex sacrificulus_ at rome. in greece, italy, and asia minor, the dominant orders seem to have universally consisted of a number of families united by an assumed relationship in blood, and, though they all appear at first to have laid claim to a quasi-sacred character, their strength does not seem to have resided in their pretended sanctity. unless they were prematurely overthrown by the popular party, they all ultimately approached very closely to what we should now understand by a political aristocracy. the changes which society underwent in the communities of the further asia occurred of course at periods long anterior in point of time to these revolutions of the italian and hellenic worlds; but their relative place in civilisation appears to have been the same, and they seem to have been exceedingly similar in general character. there is some evidence that the races which were subsequently united under the persian monarchy, and those which peopled the peninsula of india, had all their heroic age and their era of aristocracies; but a military and a religious oligarchy appear to have grown up separately, nor was the authority of the king generally superseded. contrary, too, to the course of events in the west, the religious element in the east tended to get the better of the military and political. military and civil aristocracies disappear, annihilated or crushed into insignificance between the kings and the sacerdotal order; and the ultimate result at which we arrive is, a monarch enjoying great power, but circumscribed by the privileges of a caste of priests. with these differences, however, that in the east aristocracies became religious, in the west civil or political, the proposition that a historical era of aristocracies succeeded a historical era of heroic kings may be considered as true, if not of all mankind, at all events of all branches of the indo-european family of nations. the important point for the jurist is that these aristocracies were universally the depositaries and administrators of law. they seem to have succeeded to the prerogatives of the king, with the important difference, however, that they do not appear to have pretended to direct inspiration for each sentence. the connection of ideas which caused the judgments of the patriarchal chieftain to be attributed to superhuman dictation still shows itself here and there in the claim of a divine origin for the entire body of rules, or for certain parts of it, but the progress of thought no longer permits the solution of particular disputes to be explained by supposing an extra-human interposition. what the juristical oligarchy now claims is to monopolise the _knowledge_ of the laws, to have the exclusive possession of the principles by which quarrels are decided. we have in fact arrived at the epoch of customary law. customs or observances now exist as a substantive aggregate, and are assumed to be precisely known to the aristocratic order or caste. our authorities leave us no doubt that the trust lodged with the oligarchy was sometimes abused, but it certainly ought not to be regarded as a mere usurpation or engine of tyranny. before the invention of writing, and during the infancy of the art, an aristocracy invested with judicial privileges formed the only expedient by which accurate preservation of the customs of the race or tribe could be at all approximated to. their genuineness was, so far as possible, insured by confiding them to the recollection of a limited portion of the community. the epoch of customary law, and of its custody by a privileged order, is a very remarkable one. the condition of the jurisprudence which it implies has left traces which may still be detected in legal and popular phraseology. the law, thus known exclusively to a privileged minority, whether a caste, an aristocracy, a priestly tribe, or a sacerdotal college is true unwritten law. except this, there is no such thing as unwritten law in the world. english case-law is sometimes spoken of as unwritten, and there are some english theorists who assure us that if a code of english jurisprudence were prepared we should be turning unwritten law into written--a conversion, as they insist, if not of doubtful policy, at all events of the greatest seriousness. now, it is quite true that there was once a period at which the english common law might reasonably have been termed unwritten. the elder english judges did really pretend to knowledge of rules, principles, and distinctions which were not entirely revealed to the bar and to the lay-public. whether all the law which they claimed to monopolise was really unwritten, is exceedingly questionable; but at all events, on the assumption that there was once a large mass of civil and criminal rules known exclusively to the judges, it presently ceased to be unwritten law. as soon as the courts at westminster hall began to base their judgments on cases recorded, whether in the year books or elsewhere, the law which they administered became written law. at the present moment a rule of english law has first to be disentangled from the recorded facts of adjudged printed precedents, then thrown into a form of words varying with the taste, precision, and knowledge of the particular judge, and then applied to the circumstances of the case for adjudication. but at no stage of this process has it any characteristic which distinguishes it from written law. it is written case-law, and only different from code-law because it is written in a different way. from the period of customary law we come to another sharply defined epoch in the history of jurisprudence. we arrive at the era of codes, those ancient codes of which the twelve tables of rome were the most famous specimen. in greece, in italy, on the hellenised sea-board of western asia, these codes all made their appearance at periods much the same everywhere, not, i mean, at periods identical in point of time, but similar in point of the relative progress of each community. everywhere, in the countries i have named, laws engraven on tablets and published to the people take the place of usages deposited with the recollection of a privileged oligarchy. it must not for a moment be supposed that the refined considerations now urged in favour of what is called codification had any part or place in the change i have described. the ancient codes were doubtless originally suggested by the discovery and diffusion of the art of writing. it is true that the aristocracies seem to have abused their monopoly of legal knowledge; and at all events their exclusive possession of the law was a formidable impediment to the success of those popular movements which began to be universal in the western world. but, though democratic sentiment may have added to their popularity, the codes were certainly in the main a direct result of the invention of writing. inscribed tablets were seen to be a better depositary of law, and a better security for its accurate preservation, than the memory of a number of persons however strengthened by habitual exercise. the roman code belongs to the class of codes i have been describing. their value did not consist in any approach to symmetrical classifications, or to terseness and clearness of expression, but in their publicity, and in the knowledge which they furnished to everybody, as to what he was to do, and what not to do. it is, indeed, true that the twelve tables of rome do exhibit some traces of systematic arrangement, but this is probably explained by the tradition that the framers of that body of law called in the assistance of greeks who enjoyed the later greek experience in the art of law-making. the fragments of the attic code of solon show, however, that it had but little order, and probably the laws of draco had even less. quite enough too remains of these collections, both in the east and in the west, to show that they mingled up religious, civil, and merely moral ordinances, without any regard to differences in their essential character; and this is consistent with all we know of early thought from other sources, the severance of law from morality, and of religion from law, belonging very distinctly to the _later_ stages of mental progress. but, whatever to a modern eye are the singularities of these codes, their importance to ancient societies was unspeakable. the question--and it was one which affected the whole future of each community--was not so much whether there should be a code at all, for the majority of ancient societies seem to have obtained them sooner or later, and, but for the great interruption in the history of jurisprudence created by feudalism, it is likely that all modern law would be distinctly traceable to one or more of these fountain-heads. but the point on which turned the history of the race was, at what period, at what stage of their social progress, they should have their laws put into writing. in the western world the plebeian or popular element in each state successfully assailed the oligarchical monopoly, and a code was nearly universally obtained _early_ in the history of the commonwealth. but in the east, as i have before mentioned, the ruling aristocracies tended to become religious rather than military or political, and gained, therefore, rather than lost in power; while in some instances the physical conformation of asiatic countries had the effect of making individual communities larger and more numerous than in the west; and it is a known social law that the larger the space over which a particular set of institutions is diffused, the greater is its tenacity and vitality. from whatever cause, the codes obtained by eastern societies were obtained, relatively, much later than by western, and wore a very different character. the religious oligarchies of asia, either for their own guidance, or for the relief of their memory, or for the instruction of their disciples, seem in all cases to have ultimately embodied their legal learning in a code; but the opportunity of increasing and consolidating their influence was probably too tempting to be resisted. their complete monopoly of legal knowledge appears to have enabled them to put off on the world collections, not so much of the rules actually observed as of the rules which the priestly order considered proper to be observed. the hindoo code, called the laws of menu, which is certainly a brahmin compilation, undoubtedly enshrines many genuine observances of the hindoo race, but the opinion of the best contemporary orientalists is, that it does not, as a whole, represent a set of rules ever actually administered in hindostan. it is, in great part, an ideal picture of that which, in the view of the brahmins, _ought_ to be the law. it is consistent with human nature and with the special motives of their authors, that codes like that of menu should pretend to the highest antiquity and claim to have emanated in their complete form from the deity. menu, according to hindoo mythology, is an emanation from the supreme god; but the compilation which bears his name, though its exact date is not easily discovered, is, in point of the relative progress of hindoo jurisprudence, a recent production. among the chief advantages which the twelve tables and similar codes conferred on the societies which obtained them, was the protection which they afforded against the frauds of the privileged oligarchy and also against the spontaneous depravation and debasement of the national institutions. the roman code was merely an enunciation in words of the existing customs of the roman people. relatively to the progress of the romans in civilisation, it was a remarkably early code, and it was published at a time when roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably confounded. now a barbarous society practising a body of customs, is exposed to some especial dangers which may be absolutely fatal to its progress in civilisation. the usages which a particular community is found to have adopted in its infancy and in its primitive seats are generally those which are on the whole best suited to promote its physical and moral well-being; and, if they are retained in their integrity until new social wants have taught new practices, the upward march of society is almost certain. but unhappily there is a law of development which ever threatens to operate upon unwritten usage. the customs are of course obeyed by multitudes who are incapable of understanding the true ground of their expediency, and who are therefore left inevitably to invent superstitious reasons for their permanence. a process then commences which may be shortly described by saying that usage which is reasonable generates usage which is unreasonable. analogy, the most valuable of instruments in the maturity of jurisprudence, is the most dangerous of snares in its infancy. prohibitions and ordinances, originally confined, for good reasons, to a single description of acts, are made to apply to all acts of the same class, because a man menaced with the anger of the gods for doing one thing, feels a natural terror in doing any other thing which is remotely like it. after one kind of food has been interdicted for sanitary reasons, the prohibition is extended to all food resembling it, though the resemblance occasionally depends on analogies the most fanciful. so, again, a wise provision for insuring general cleanliness dictates in time long routines of ceremonial ablution; and that division into classes which at a particular crisis of social history is necessary for the maintenance of the national existence degenerates into the most disastrous and blighting of all human institutions--caste. the fate of the hindoo law is, in fact, the measure of the value of the roman code. ethnology shows us that the romans and the hindoos sprang from the same original stock, and there is indeed a striking resemblance between what appear to have been their original customs. even now, hindoo jurisprudence has a substratum of forethought and sound judgment, but irrational imitation has engrafted in it an immense apparatus of cruel absurdities. from these corruptions the romans were protected by their code. it was compiled while the usage was still wholesome, and a hundred years afterwards it might have been too late. the hindoo law has been to a great extent embodied in writing, but, ancient as in one sense are the compendia which still exist in sanskrit, they contain ample evidence that they were drawn up after the mischief had been done. we are not of course entitled to say that if the twelve tables had not been published the romans would have been condemned to a civilisation as feeble and perverted as that of the hindoos, but thus much at least is certain, that _with_ their code they were exempt from the very chance of so unhappy a destiny. chapter ii legal fictions when primitive law has once been embodied in a code, there is an end to what may be called its spontaneous development. henceforward the changes effected in it, if effected at all, are effected deliberately and from without. it is impossible to suppose that the customs of any race or tribe remained unaltered during the whole of the long--in some instances the immense--interval between their declaration by a patriarchal monarch and their publication in writing. it would be unsafe too to affirm that no part of the alteration was effected deliberately. but from the little we know of the progress of law during this period, we are justified in assuming that set purpose had the very smallest share in producing change. such innovations on the earliest usages as disclose themselves appear to have been dictated by feelings and modes of thought which, under our present mental conditions, we are unable to comprehend. a new era begins, however, with the codes. wherever, after this epoch, we trace the course of legal modification we are able to attribute it to the conscious desire of improvement, or at all events of compassing objects other than those which were aimed at in the primitive times. it may seem at first sight that no general propositions worth trusting can be elicited from the history of legal systems subsequent to the codes. the field is too vast. we cannot be sure that we have included a sufficient number of phenomena in our observations, or that we accurately understand those which we have observed. but the undertaking will be seen to be more feasible, if we consider that after the epoch of codes the distinction between stationary and progressive societies begins to make itself felt. it is only with the progressive that we are concerned, and nothing is more remarkable than their extreme fewness. in spite of overwhelming evidence, it is most difficult for a citizen of western europe to bring thoroughly home to himself the truth that the civilisation which surrounds him is a rare exception in the history of the world. the tone of thought common among us, all our hopes, fears, and speculations, would be materially affected, if we had vividly before us the relation of the progressive races to the totality of human life. it is indisputable that much the greatest part of mankind has never shown a particle of desire that its civil institutions should be improved since the moment when external completeness was first given to them by their embodiment in some permanent record. one set of usages has occasionally been violently overthrown and superseded by another; here and there a primitive code, pretending to a supernatural origin, has been greatly extended, and distorted into the most surprising forms, by the perversity of sacerdotal commentators; but, except in a small section of the world, there has been nothing like the gradual amelioration of a legal system. there has been material civilisation, but, instead of the civilisation expanding the law, the law has limited the civilisation. the study of races in their primitive condition affords us some clue to the point at which the development of certain societies has stopped. we can see that brahminical india has not passed beyond a stage which occurs in the history of all the families of mankind, the stage at which a rule of law is not yet discriminated from a rule of religion. the members of such a society consider that the transgression of a religious ordinance should be punished by civil penalties, and that the violation of a civil duty exposes the delinquent to divine correction. in china this point has been passed, but progress seems to have been there arrested, because the civil laws are coextensive with all the ideas of which the race is capable. the difference between the stationary and progressive societies is, however, one of the great secrets which inquiry has yet to penetrate. among partial explanations of it i venture to place the considerations urged at the end of the last chapter. it may further be remarked that no one is likely to succeed in the investigation who does not clearly realise that the stationary condition of the human race is the rule, the progressive the exception. and another indispensable condition of success is an accurate knowledge of roman law in all its principal stages. the roman jurisprudence has the longest known history of any set of human institutions. the character of all the changes which it underwent is tolerably well ascertained. from its commencement to its close, it was progressively modified for the better, or for what the authors of the modification conceived to be the better, and the course of improvement was continued through periods at which all the rest of human thought and action materially slackened its pace, and repeatedly threatened to settle down into stagnation. i confine myself in what follows to the progressive societies. with respect to them it may be laid down that social necessities and social opinion are always more or less in advance of law. we may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to reopen. law is stable; the societies we are speaking of are progressive. the greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed. a general proposition of some value may be advanced with respect to the agencies by which law is brought into harmony with society. these instrumentalities seem to me to be three in number, legal fictions, equity, and legislation. their historical order is that in which i have placed them. sometimes two of them will be seen operating together, and there are legal systems which have escaped the influence of one or other of them. but i know of no instance in which the order of their appearance has been changed or inverted. the early history of one of them, equity, is universally obscure, and hence it may be thought by some that certain isolated statutes, reformatory of the civil law, are older than any equitable jurisdiction. my own belief is that remedial equity is everywhere older than remedial legislation; but, should this be not strictly true, it would only be necessary to limit the proposition respecting their order of sequence to the periods at which they exercise a sustained and substantial influence in transforming the original law. i employ the word "fiction" in a sense considerably wider than that in which english lawyers are accustomed to use it, and with a meaning much more extensive than that which belonged to the roman "fictiones." fictio, in old roman law, is properly a term of pleading, and signifies a false averment on the part of the plaintiff which the defendant was not allowed to traverse; such, for example, as an averment that the plaintiff was a roman citizen, when in truth he was a foreigner. the object of these "fictiones" was, of course, to give jurisdiction, and they therefore strongly resembled the allegations in the writs of the english queen's bench, and exchequer, by which those courts contrived to usurp the jurisdiction of the common pleas:--the allegation that the defendant was in custody of the king's marshal, or that the plaintiff was the king's debtor, and could not pay his debt by reason of the defendant's default. but i now employ the expression "legal fiction" to signify any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. the words, therefore, include the instances of fictions which i have cited from the english and roman law, but they embrace much more, for i should speak both of the english case-law and of the roman responsa prudentum as resting on fictions. both these examples will be examined presently. the _fact_ is in both cases that the law has been wholly changed; the _fiction_ is that it remains what it always was. it is not difficult to understand why fictions in all their forms are particularly congenial to the infancy of society. they satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change which is always present. at a particular stage of social progress they are invaluable expedients for overcoming the rigidity of law, and, indeed, without one of them, the fiction of adoption which permits the family tie to be artificially created, it is difficult to understand how society would ever have escaped from its swaddling clothes, and taken its first steps towards civilisation. we must, therefore, not suffer ourselves to be affected by the ridicule which bentham pours on legal fictions wherever he meets them. to revile them as merely fraudulent is to betray ignorance of their peculiar office in the historical development of law. but at the same time it would be equally foolish to agree with those theorists, who, discerning that fictions have had their uses, argue that they ought to be stereotyped in our system. they have had their day, but it has long since gone by. it is unworthy of us to effect an admittedly beneficial object by so rude a device as a legal fiction. i cannot admit any anomaly to be innocent, which makes the law either more difficult to understand or harder to arrange in harmonious order. now legal fictions are the greatest of obstacles to symmetrical classification. the rule of law remains sticking in the system, but it is a mere shell. it has been long ago undermined, and a new rule hides itself under its cover. hence there is at once a difficulty in knowing whether the rule which is actually operative should be classed in its true 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 form 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 entitling them at once to the recognition of the courts even without the concurrence of prince or parliamentary assembly. it is the more necessary to note these differences, because a student of bentham would be apt to confound fictions, equity, and statute law under the single head of legislation. they all, he would say, involve _law-making_; they differ only in respect of the machinery by which the new law is produced. that is perfectly true, and we must never forget it; but it furnishes no reason why we should deprive ourselves of so convenient a term as legislation in the special sense. legislation and equity are disjoined in the popular mind and in the minds of most lawyers; and it will never do to neglect the distinction between them, however conventional, when important practical consequences follow from it. it would be easy to select from almost any regularly developed body of rules examples of _legal fictions_, which at once betray their true character to the modern observer. in the two instances which i proceed to consider, the nature of the expedient employed is not so readily detected. the first authors of these fictions did not perhaps intend to innovate, certainly did not wish to be suspected of innovating. there are, moreover, and always have been, persons who refuse to see any fiction in the process, and conventional language bears out their refusal. no examples, therefore, can be better calculated to illustrate the wide diffusion of legal fictions, and the efficiency with which they perform their two-fold office of transforming a system of laws and of concealing the transformation. we in england are well accustomed to the extension, modification, and improvement of law by a machinery which, in theory, is incapable of altering one jot or one line of existing jurisprudence. the process by which this virtual legislation is effected is not so much insensible as unacknowledged. with respect to that great portion of our legal system which is enshrined in cases and recorded in law reports, we habitually employ a double language and entertain, as it would appear, a double and inconsistent set of ideas. when a group of facts come before an english court for adjudication, the whole course of the discussion between the judge and the advocate assumes that no question is, or can be, raised which will call for the application of any principles but old ones, or any distinctions but such as have long since been allowed. it is taken absolutely for granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated, and that, if such a rule be not discovered, it is only that the necessary patience, knowledge, or acumen is not forthcoming to detect it. yet the moment the judgment has been rendered and reported, we slide unconsciously or unavowedly into a new language and a new train of thought. we now admit that the new decision _has_ modified the law. the rules applicable have, to use the very inaccurate expression sometimes employed, become more elastic. in fact they have been changed. a clear addition has been made to the precedents, and the canon of law elicited by comparing the precedents is not the same with that which would have been obtained if the series of cases had been curtailed by a single example. the fact that the old rule has been repealed, and that a new one has replaced it, eludes us, because we are not in the habit of throwing into precise language the legal formulas which we derive from the precedents, so that a change in their tenor is not easily detected unless it is violent and glaring. i shall not now pause to consider at length the causes which have led english lawyers to acquiesce in these curious anomalies. probably it will be found that originally it was the received doctrine that somewhere, _in nubibus_ or _in gremio magistratuum_, there existed a complete, coherent, symmetrical body of english law, of an amplitude sufficient to furnish principles which would apply to any conceivable combination of circumstances. the theory was at first much more thoroughly believed in than it is now, and indeed it may have had a better foundation. the judges of the thirteenth century may have really had at their command a mine of law unrevealed to the bar and to the lay-public, for there is some reason for suspecting that in secret they borrowed freely, though not always wisely, from current compendia of the roman and canon laws. but that storehouse was closed so soon as the points decided at westminster hall became numerous enough to supply a basis for a substantive system of jurisprudence; and now for centuries english practitioners have so expressed themselves as to convey the paradoxical proposition that, except by equity and statute law, nothing has been added to the basis since it was first constituted. we do not admit that our tribunals legislate; we imply that they have never legislated; and yet we maintain that the rules of the english common law, with some assistance from the court of chancery and from parliament, are coextensive with the complicated interests of modern society. a body of law bearing a very close and very instructive resemblance to our case-law in those particulars which i have noticed, was known to the romans under the name of the responsa prudentum, the "answers of the learned in the law." the form of these responses varied a good deal at different periods of the roman jurisprudence, but throughout its whole course they consisted of explanatory glosses on authoritative written documents, and at first they were exclusively collections of opinions interpretative of the twelve tables. as with us, all legal language adjusted itself to the assumption that the text of the old code remained unchanged. there was the express rule. it overrode all glosses and comments, and no one openly admitted that any interpretation of it, however eminent the interpreter, was safe from revision on appeal to the venerable texts. yet in point of fact, books of responses bearing the names of leading jurisconsults obtained an authority at least equal to that of our reported cases, and constantly modified, extended, limited or practically overruled the provisions of the decemviral law. the authors of the new jurisprudence during the whole progress of its formation professed the most sedulous respect for the letter of the code. they were merely explaining it, deciphering it, bringing out its full meaning; but then, in the result, by piecing texts together, by adjusting the law to states of fact which actually presented themselves and by speculating on its possible application to others which might occur, by introducing principles of interpretation derived from the exegesis of other written documents which fell under their observation, they educed a vast variety of canons which had never been dreamed of by the compilers of the twelve tables and which were in truth rarely or never to be found there. all these treatises of the jurisconsults claimed respect on the ground of their assumed conformity with the code, but their comparative authority depended on the reputation of the particular jurisconsults who gave them to the world. any name of universally acknowledged greatness clothed a book of responses with a binding force hardly less than that which belonged to enactments of the legislature; and such a book in its turn constituted a new foundation on which a further body of jurisprudence might rest. the responses of the early lawyers were not however published, in the modern sense, by their author. they were recorded and edited by his pupils, and were not therefore in all probability arranged according to any scheme of classification. the part of the students in these publications must be carefully noted, because the service they rendered to their teacher seems to have been generally repaid by his sedulous attention to the pupils' education. the educational treatises called institutes or commentaries, which are a later fruit of the duty then recognised, are among the most remarkable features of the roman system. it was apparently in these institutional works, and not in the books intended for trained lawyers, that the jurisconsults gave to the public their classifications and their proposals for modifying and improving the technical phraseology. in comparing the roman responsa prudentum with their nearest english counterpart, it must be carefully borne in mind that the authority by which this part of the roman jurisprudence was expounded was not the _bench_, but the _bar_. the decision of a roman tribunal, though conclusive in the particular case, had no ulterior authority except such as was given by the professional repute of the magistrate who happened to be in office for the time. properly speaking, there was no institution at rome during the republic analogous to the english bench, the chambers of imperial germany, or the parliaments of monarchical france. there were magistrates indeed, invested with momentous judicial functions in their several departments, but the tenure of the magistracies was but for a single year, so that they are much less aptly compared to a permanent judicature than to a cycle of offices briskly circulating among the leaders of the bar. much might be said on the origin of a condition of things which looks to us like a startling anomaly, but which was in fact much more congenial than our own system to the spirit of ancient societies, tending, as they always did, to split into distinct orders which, however exclusive themselves, tolerated no professional hierarchy above them. it is remarkable that this system did not produce certain effects which might on the whole have been expected from it. it did not, for example, _popularise_ the roman law--it did not, as in some of the greek republics, lessen the effort of intellect required for the mastery of the science, although its diffusion and authoritative exposition were opposed by no artificial barriers. on the contrary, if it had not been for the operation of a separate set of causes, there were strong probabilities that the roman jurisprudence would have become as minute, technical, and difficult as any system which has since prevailed. again, a consequence which might still more naturally have been looked for, does not appear at any time to have exhibited itself. the jurisconsults, until the liberties of rome were overthrown, formed a class which was quite undefined and must have fluctuated greatly in numbers; nevertheless, there does not seem to have existed a doubt as to the particular individuals whose opinion, in their generation, was conclusive on the cases submitted to them. the vivid pictures of a leading jurisconsult's daily practice which abound in latin literature--the clients from the country flocking to his antechamber in the early morning, and the students standing round with their note-books to record the great lawyer's replies--are seldom or never identified at any given period with more than one or two conspicuous names. owing too to the direct contact of the client and the advocate, the roman people itself seems to have been always alive to the rise and fall of professional reputation, and there is abundance of proof, more particularly in the well-known oration of cicero, _pro muræna_, that the reverence of the commons for forensic success was apt to be excessive rather than deficient. we cannot doubt that the peculiarities which have been noted in the instrumentality by which the development of the roman law was first effected, were the source of its characteristic excellence, its early wealth in principles. the growth and exuberance of principle was fostered, in part, by the competition among the expositors of the law, an influence wholly unknown where there exists a bench, the depositaries intrusted by king or commonwealth with the prerogative of justice. but the chief agency, no doubt, was the uncontrolled multiplication of cases for legal decision. the state of facts which caused genuine perplexity to a country client was not a whit more entitled to form the basis of the jurisconsult's response, or legal decision, than a set of hypothetical circumstances propounded by an ingenious pupil. all combinations of fact were on precisely the same footing, whether they were real or imaginary. it was nothing to the jurisconsult that his opinion was overruled for the moment by the magistrate who adjudicated on his client's case, unless that magistrate happened to rank above him in legal knowledge or the esteem of his profession. i do not, indeed, mean it to be inferred that he would wholly omit to consider his client's advantage, for the client was in earlier times the great lawyer's constituent and at a later period his paymaster, but the main road to the rewards of ambition lay through the good opinion of his order, and it is obvious that under such a system as i have been describing this was much more likely to be secured by viewing each case as an illustration of a great principle, or an exemplification of a broad rule, than by merely shaping it for an insulated forensic triumph. a still more powerful influence must have been exercised by the want of any distinct check on the suggestion or invention of possible questions. where the data can be multiplied at pleasure, the facilities for evolving a general rule are immensely increased. as the law is administered among ourselves, the judge cannot travel out of the sets of facts exhibited before him or before his predecessors. accordingly each group of circumstances which is adjudicated upon receives, to employ a gallicism, a sort of consecration. it acquires certain qualities which distinguish it from every other case genuine or hypothetical. but at rome, as i have attempted to explain, there was nothing resembling a bench or chamber of judges; and therefore no combination of facts possessed any particular value more than another. when a difficulty came for opinion before the jurisconsult, there was nothing to prevent a person endowed with a nice perception of analogy from at once proceeding to adduce and consider an entire class of supposed questions with which a particular feature connected it. whatever were the practical advice given to the client, the _responsum_ treasured up in the note-books of listening pupils would doubtless contemplate the circumstances as governed by a great principle, or included in a sweeping rule. nothing like this has ever been possible among ourselves, and it should be acknowledged that in many criticisms passed on the english law the manner in which it has been enunciated seems to have been lost sight of. the hesitation of our courts in declaring principles may be much more reasonably attributed to the comparative scantiness of our precedents, voluminous as they appear to him who is acquainted with no other system, than to the temper of our judges. it is true that in the wealth of legal principle we are considerably poorer than several modern european nations, but they, it must be remembered, took the roman jurisprudence for the foundation of their civil institutions. they built the _débris_ of the roman law into their walls; but in the materials, and workmanship of the residue there is not much which distinguishes it favourably from the structure erected by the english judicature. the period of roman freedom was the period during which the stamp of a distinctive character was impressed on the roman jurisprudence; and through all the earlier part of it, it was by the responses of the jurisconsults that the development of the law was mainly carried on. but as we approach the fall of the republic there are signs that the responses are assuming a form which must have been fatal to their farther expansion. they are becoming systematised and reduced into compendia. q. mucius scævola, the pontifex, is said to have published a manual of the entire civil law, and there are traces in the writings of cicero of growing disrelish for the old methods, as compared with the more active instruments of legal innovation. other agencies had in fact by this time been brought to bear on the law. the edict, or annual proclamation of the prætor, had risen into credit as the principal engine of law reform, and l. cornelius sylla, by causing to be enacted the great group of statutes called the _leges corneliæ_, had shown what rapid and speedy improvements can be effected by direct legislation. the final blow to the responses was dealt by augustus, who limited to a few leading jurisconsults the right of giving binding opinions on cases submitted to them, a change which, though it brings us nearer the ideas of the modern world, must obviously have altered fundamentally the characteristics of the legal profession and the nature of its influence on roman law. at a later period another school of jurisconsults arose, the great lights of jurisprudence for all time. but ulpian and paulus, gaius and papinian, were not authors of responses. their works were regular treatises on particular departments of the law, more especially on the prætor's edict. the _equity_ of the romans and the prætorian edict by which it was worked into their system, will be considered in the next chapter. of the statute law it is only necessary to say that it was scanty during the republic, but became very voluminous under the empire. in the youth and infancy of a nation it is a rare thing for the legislature to be called into action for the general reform of private law. the cry of the people is not for change in the laws, which are usually valued above their real worth, but solely for their pure, complete, and easy administration; and recourse to the legislative body is generally directed to the removal of some great abuse, or the decision of some incurable quarrel between classes and dynasties. there seems in the minds of the romans to have been some association between the enactment of a large body of statutes and the settlement of society after a great civil commotion. sylla signalised his reconstitution of the republic by the leges corneliæ; julius cæsar contemplated vast additions to the statute law; augustus caused to be passed the all-important group of leges juliæ; and among later emperors the most active promulgators of constitutions are princes who, like constantine, have the concerns of the world to readjust. the true period of roman statute law does not begin till the establishment of the empire. the enactments of the emperors, clothed at first in the pretence of popular sanction, but afterwards emanating undisguisedly from the imperial prerogative, extend in increasing massiveness from the consolidation of augustus's power to the publication of the code of justinian. it will be seen that even in the reign of the second emperor a considerable approximation is made to that condition of the law and that mode of administering it with which we are all familiar. a statute law and a limited board of expositors have risen into being; a permanent court of appeal and a collection of approved commentaries will very shortly be added; and thus we are brought close on the ideas of our own day. chapter iii law of nature and equity the theory of a set of legal principles, entitled by their intrinsic superiority to supersede the older law, very early obtained currency both in the roman state and in england. such a body of principles, existing in any system, has in the foregoing chapters been denominated equity, a term which, as will presently be seen, was one (though only one) of the designations by which this agent of legal change was known to the roman jurisconsults. the jurisprudence of the court of chancery, which bears the name of equity in england, could only be adequately discussed in a separate treatise. it is extremely complex in its texture and derives its materials from several heterogeneous sources. the early ecclesiastical chancellors contributed to it, from the canon law, many of the principles which lie deepest in its structure. the roman law, more fertile than the canon law in rules applicable to secular disputes, was not seldom resorted to by a later generation of chancery judges, amid whose recorded dicta we often find entire texts from the _corpus juris civilis_ imbedded, with their terms unaltered, though their origin is never acknowledged. still more recently, and particularly at the middle and during the latter half of the eighteenth century, the mixed systems of jurisprudence and morals constructed by the publicists of the low countries appear to have been much studied by english lawyers, and from the chancellorship of lord talbot to the commencement of lord eldon's chancellorship these works had considerable effect on the rulings of the court of chancery. the system, which obtained its ingredients from these various quarters, was greatly controlled in its growth by the necessity imposed on it of conforming itself to the analogies of the common law, but it has always answered the description of a body of comparatively novel legal principles claiming to override the older jurisprudence of the country on the strength of an intrinsic ethical superiority. the equity of rome was a much simpler structure, and its development from its first appearance can be much more easily traced. both its character and its history deserve attentive examination. it is the root of several conceptions which have exercised profound influence on human thought, and through human thought have seriously affected the destinies of mankind. the romans described their legal system as consisting of two ingredients. "all nations," says the institutional treatise published under the authority of the emperor justinian, "who are ruled by laws and customs, are governed partly by their own particular laws, and partly by those laws which are common to all mankind. the law which a people enacts is called the civil law of that people, but that which natural reason appoints for all mankind is called the law of nations, because all nations use it." the part of the law "which natural reason appoints for all mankind" was the element which the edict of the prætor was supposed to have worked into roman jurisprudence. elsewhere it is styled more simply jus naturale, or the law of nature; and its ordinances are said to be dictated by natural equity (_naturalis æquitas_) as well as by natural reason. i shall attempt to discover the origin of these famous phrases, law of nations, law of nature, equity, and to determine how the conceptions which they indicate are related to one another. the most superficial student of roman history must be struck by the extraordinary degree in which the fortunes of the republic were affected by the presence of foreigners, under different names, on her soil. the causes of this immigration are discernible enough at a later period, for we can readily understand why men of all races should flock to the mistress of the world; but the same phenomenon of a large population of foreigners and denizens meets us in the very earliest records of the roman state. no doubt, the instability of society in ancient italy, composed as it was in great measure of robber tribes, gave men considerable inducement to locate themselves in the territory of any community strong enough to protect itself and them from external attack, even though protection should be purchased at the cost of heavy taxation, political disfranchisement, and much social humiliation. it is probable, however, that this explanation is imperfect, and that it could only be completed by taking into account those active commercial relations which, though they are little reflected in the military traditions of the republic, rome appears certainly to have had with carthage and with the interior of italy in pre-historic times. whatever were the circumstances to which it was attributable, the foreign element in the commonwealth determined the whole course of its history, which, at all its stages, is little more than a narrative of conflicts between a stubborn nationality and an alien population. nothing like this has been seen in modern times; on the one hand, because modern european communities have seldom or never received any accession of foreign immigrants which was large enough to make itself felt by the bulk of the native citizens, and on the other, because modern states, being held together by allegiance to a king or political superior, absorb considerable bodies of immigrant settlers with a quickness unknown to the ancient world, where the original citizens of a commonwealth always believed themselves to be united by kinship in blood, and resented a claim to equality of privilege as a usurpation of their birthright. in the early roman republic the principle of the absolute exclusion of foreigners pervaded the civil law no less than the constitution. the alien or denizen could have no share in any institution supposed to be coeval with the state. he could not have the benefit of quiritarian law. he could not be a party to the _nexum_ which was at once the conveyance and the contract of the primitive romans. he could not sue by the sacramental action, a mode of litigation of which the origin mounts up to the very infancy of civilisation. still, neither the interest nor the security of rome permitted him to be quite outlawed. all ancient communities ran the risk of being overthrown by a very slight disturbance of equilibrium, and the mere instinct of self-preservation would force the romans to devise some method of adjusting the rights and duties of foreigners, who might otherwise--and this was a danger of real importance in the ancient world--have decided their controversies by armed strife. moreover, at no period of roman history was foreign trade entirely neglected. it was therefore probably half as a measure of police and half in furtherance of commerce that jurisdiction was first assumed in disputes to which the parties were either foreigners or a native and a foreigner. the assumption of such a jurisdiction brought with it the immediate necessity of discovering some principles on which the questions to be adjudicated upon could be settled, and the principles applied to this object by the roman lawyers were eminently characteristic of the time. they refused, as i have said before, to decide the new cases by pure roman civil law. they refused, no doubt because it seemed to involve some kind of degradation, to apply the law of the particular state from which the foreign litigant came. the expedient to which they resorted was that of selecting the rules of law common to rome and to the different italian communities in which the immigrants were born. in other words, they set themselves to form a system answering to the primitive and literal meaning of jus gentium, that is, law common to all nations. jus gentium was, in fact, the sum of the common ingredients in the customs of the old italian tribes, for they were _all the nations_ whom the romans had the means of observing, and who sent successive swarms of immigrants to roman soil. whenever a particular usage was seen to be practised by a large number of separate races in common it was set down as part of the law common to all nations, or jus gentium. thus, although the conveyance of property was certainly accompanied by very different forms in the different commonwealths surrounding rome, the actual transfer, tradition, or delivery of the article intended to be conveyed was a part of the ceremonial in all of them. it was, for instance, a part, though a subordinate part, in the mancipation or conveyance peculiar to rome. tradition, therefore, being in all probability the only common ingredient in the modes of conveyance which the jurisconsults had the means of observing, was set down as an institution juris gentium, or rule of the law common to all nations. a vast number of other observances were scrutinised with the same result. some common characteristic was discovered in all of them, which had a common object, and this characteristic was classed in the jus gentium. the jus gentium was accordingly a collection of rules and principles, determined by observation to be common to the institutions which prevailed among the various italian tribes. the circumstances of the origin of the jus gentium are probably a sufficient safeguard against the mistake of supposing that the roman lawyers had any special respect for it. it was the fruit in part of their disdain for all foreign law, and in part of their disinclination to give the foreigner the advantage of their own indigenous jus civile. it is true that we, at the present day, should probably take a very different view of the jus gentium, if we were performing the operation which was effected by the roman jurisconsults. we should attach some vague superiority or precedence to the element which we had thus discerned underlying and pervading so great a variety of usage. we should have a sort of respect for rules and principles so universal. perhaps we should speak of the common ingredient as being of the essence of the transaction into which it entered, and should stigmatise the remaining apparatus of ceremony, which varied in different communities, as adventitious and accidental. or it may be, we should infer that the races which we were comparing had once obeyed a great system of common institutions of which the jus gentium was the reproduction, and that the complicated usages of separate commonwealths were only corruptions and depravations of the simpler ordinances which had once regulated their primitive state. but the results to which modern ideas conduct the observer are, as nearly as possible, the reverse of those which were instinctively brought home to the primitive roman. what we respect or admire, he disliked or regarded with jealous dread. the parts of jurisprudence which he looked upon with affection were exactly those which a modern theorist leaves out of consideration as accidental and transitory; the solemn gestures of the mancipation; the nicely adjusted questions and answers of the verbal contract; the endless formalities of pleading and procedure. the jus gentium was merely a system forced on his attention by a political necessity. he loved it as little as he loved the foreigners from whose institutions it was derived and for whose benefit it was intended. a complete revolution in his ideas was required before it could challenge his respect, but so complete was it when it did occur, that the true reason why our modern estimate of the jus gentium differs from that which has just been described, is that both modern jurisprudence and modern philosophy have inherited the matured views of the later jurisconsults on this subject. there did come a time, when from an ignoble appendage of the jus civile, the jus gentium came to be considered a great though as yet imperfectly developed model to which all law ought as far as possible to conform. this crisis arrived when the greek theory of a law of nature was applied to the practical roman administration of the law common to all nations. the jus naturale, or law of nature, is simply the jus gentium or law of nations seen in the light of a peculiar theory. an unfortunate attempt to discriminate them was made by the jurisconsult ulpian, with the propensity to distinguish characteristic of a lawyer, but the language of gaius, a much higher authority, and the passage quoted before from the institutes leave no room for doubt, that the expressions were practically convertible. the difference between them was entirely historical, and no distinction in essence could ever be established between them. it is almost unnecessary to add that the confusion between jus gentium, or law common to all nations, and _international law_ is entirely modern. the classical expression for international law is jus feciale or the law of negotiation and diplomacy. it is, however, unquestionable that indistinct impressions as to the meaning of jus gentium had considerable share in producing the modern theory that the relations of independent states are governed by the law of nature. it becomes necessary to investigate the greek conceptions of nature and her law. the word [greek: physis], which was rendered in the latin _natura_ and our _nature_, denoted beyond all doubt originally the material universe, but it was the material universe contemplated under an aspect which--such is our intellectual distance from those times--it is not very easy to delineate in modern language. nature signified the physical world regarded as the result of some primordial element or law. the oldest greek philosophers had been accustomed to explain the fabric of creation as the manifestation of some single principle which they variously asserted to be movement, force, fire, moisture, or generation. in its simplest and most ancient sense, nature is precisely the physical universe looked upon in this way as the manifestation of a principle. afterwards, the later greek sects, returning to a path from which the greatest intellects of greece had meanwhile strayed, added the _moral_ to the _physical_ world in the conception of nature. they extended the term till it embraced not merely the visible creation, but the thoughts, observances, and aspirations of mankind. still, as before, it was not solely the moral phenomena of human society which they understood by _nature_, but these phenomena considered as resolvable into some general and simple laws. now, just as the oldest greek theorists supposed that the sports of chance had changed the material universe from its simple primitive form into its present heterogeneous condition, so their intellectual descendants imagined that but for untoward accident the human race would have conformed itself to simpler rules of conduct and a less tempestuous life. to live according to _nature_ came to be considered as the end for which man was created, and which the best men were bound to compass. to live according to _nature_ was to rise above the disorderly habits and gross indulgences of the vulgar to higher laws of action which nothing but self-denial and self-command would enable the aspirant to observe. it is notorious that this proposition--live according to nature--was the sum of the tenets of the famous stoic philosophy. now on the subjugation of greece that philosophy made instantaneous progress in roman society. it possessed natural fascinations for the powerful class who, in theory at least, adhered to the simple habits of the ancient italian race, and disdained to surrender themselves to the innovations of foreign fashions. such persons began immediately to affect the stoic precepts of life according to nature--an affectation all the more grateful, and, i may add, all the more noble, from its contrast with the unbounded profligacy which was being diffused through the imperial city by the pillage of the world and by the example of its most luxurious races. in the front of the disciples of the new greek school, we might be sure, even if we did not know it historically, that the roman lawyers figured. we have abundant proof that, there being substantially but two professions in the roman republic, the military men were generally identified with the party of movement, but the lawyers were universally at the head of the party of resistance. the alliance of the lawyers with the stoic philosophers lasted through many centuries. some of the earliest names in the series of renowned jurisconsults are associated with stoicism, and ultimately we have the golden age of roman jurisprudence fixed by general consent at the era of the antonine cæsars, the most famous disciples to whom that philosophy has given a rule of life. the long diffusion of these doctrines among the members of a particular profession was sure to affect the art which they practised and influenced. several positions which we find in the remains of the roman jurisconsults are scarcely intelligible, unless we use the stoic tenets as our key; but at the same time it is a serious, though a very common, error to measure the influence of stoicism on roman law by counting up the number of legal rules which can be confidently affiliated on stoical dogmas. it has often been observed that the strength of stoicism resided not in its canons of conduct, which were often repulsive or ridiculous, but in the great though vague principle which it inculcated of resistance to passion. just in the same way the influence on jurisprudence of the greek theories, which had their most distinct expression in stoicism, consisted not in the number of specific positions which they contributed to roman law, but in the single fundamental assumption which they lent to it. after nature had become a household word in the mouths of the romans, the belief gradually prevailed among the roman lawyers that the old jus gentium was in fact the lost code of nature, and that the prætor in framing an edictal jurisprudence on the principles of the jus gentium was gradually restoring a type from which law had only departed to deteriorate. the inference from this belief was immediate, that it was the prætor's duty to supersede the civil law as much as possible by the edict, to revive as far as might be the institutions by which nature had governed man in the primitive state. of course, there were many impediments to the amelioration of law by this agency. there may have been prejudices to overcome even in the legal profession itself, and roman habits were far too tenacious to give way at once to mere philosophical theory. the indirect methods by which the edict combated certain technical anomalies, show the caution which its authors were compelled to observe, and down to the very days of justinian there was some part of the old law which had obstinately resisted its influence. but, on the whole, the progress of the romans in legal improvement was astonishingly rapid as soon as stimulus was applied to it by the theory of natural law. the ideas of simplification and generalisation had always been associated with the conception of nature; simplicity, symmetry, and intelligibility came therefore to be regarded as the characteristics of a good legal system, and the taste for involved language, multiplied ceremonials, and useless difficulties disappeared altogether. the strong will, and unusual opportunities of justinian were needed to bring the roman law to its existing shape, but the ground plan of the system had been sketched long before the imperial reforms were effected. what was the exact point of contact between the old jus gentium and the law of nature? i think that they touch and blend through æquitas, or equity in its original sense; and here we seem to come to the first appearance in jurisprudence of this famous term, equity. in examining an expression which has so remote an origin and so long a history as this, it is always safest to penetrate, if possible, to the simple metaphor or figure which at first shadowed forth the conception. it has generally been supposed that æquitas is the equivalent of the greek [greek: isotês], _i.e._ the principle of equal or proportionate distribution. the equal division of numbers or physical magnitudes is doubtless closely entwined with our perceptions of justice; there are few associations which keep their ground in the mind so stubbornly or are dismissed from it with such difficulty by the deepest thinkers. yet in tracing the history of this association, it certainly does not seem to have suggested itself to very early thought, but is rather the offspring of a comparatively late philosophy. it is remarkable too that the "equality" of laws on which the greek democracies prided themselves--that equality which, in the beautiful drinking song of callistratus, harmodius and aristogiton are said to have given to athens--had little in common with the "equity" of the romans. the first was an equal administration of civil laws among the citizens, however limited the class of citizens might be; the last implied the applicability of a law, which was not civil law, to a class which did not necessarily consist of citizens. the first excluded a despot; the last included foreigners, and for some purposes slaves. on the whole, i should be disposed to look in another direction for the germ of the roman "equity." the latin word "æquus" carries with it more distinctly than the greek "[greek: isos]" the sense of _levelling_. now its levelling tendency was exactly the characteristic of the jus gentium, which would be most striking to a primitive roman. the pure quiritarian law recognised a multitude of arbitrary distinctions between classes of men and kinds of property; the jus gentium, generalised from a comparison of various customs, neglected the quiritarian divisions. the old roman law established, for example, a fundamental difference between "agnatic" and "cognatic" relationship, that is, between the family considered as based upon common subjection to patriarchal authority and the family considered (in conformity with modern ideas) as united through the mere fact of a common descent. this distinction disappears in the "law common to all nations," as also does the difference between the archaic forms of property, things "mancipi" and things "nec mancipi." the neglect of demarcations and boundaries seems to me, therefore, the feature of the jus gentium which was depicted in æquitas. i imagine that the word was at first a mere description of that constant _levelling_ or removal of irregularities which went on wherever the prætorian system was applied to the cases of foreign litigants. probably no colour of ethical meaning belonged at first to the expression; nor is there any reason to believe that the process which it indicated was otherwise than extremely distasteful to the primitive roman mind. on the other hand, the feature of the jus gentium which was presented to the apprehension of a roman by the word equity, was exactly the first and most vividly realised characteristic of the hypothetical state of nature. nature implied symmetrical order, first in the physical world, and next in the moral, and the earliest notion of order doubtless involved straight lines, even surfaces, and measured distances. the same sort of picture or figure would be unconsciously before the mind's eye, whether it strove to form the outlines of the supposed natural state, or whether it took in at a glance the actual administration of the "law common to all nations"; and all we know of primitive thought would lead us to conclude that this ideal similarity would do much to encourage the belief in an identity of the two conceptions. but then, while the jus gentium had little or no antecedent credit at rome, the theory of a law of nature came in surrounded with all the prestige of philosophical authority, and invested with the charms of association with an elder and more blissful condition of the race. it is easy to understand how the difference in the point of view would affect the dignity of the term which at once described the operation of the old principles and the results of the new theory. even to modern ears it is not at all the same thing to describe a process as one of "levelling" and to call it the "correction of anomalies," though the metaphor is precisely the same. nor do i doubt that, when once æquitas was understood to convey an allusion to the greek theory, associations which grew out of the greek notion of [greek: isotês] began to cluster round it. the language of cicero renders it more than likely that this was so, and it was the first stage of a transmutation of the conception of equity, which almost every ethical system which has appeared since those days has more or less helped to carry on. something must be said of the formal instrumentality by which the principles and distinctions associated, first with the law common to all nations, and afterwards with the law of nature, were gradually incorporated with the roman law. at the crisis of primitive roman history which is marked by the expulsion of the tarquins, a change occurred which has its parallel in the early annals of many ancient states, but which had little in common with those passages of political affairs which we now term revolutions. it may best be described by saying that the monarchy was put into commission. the powers heretofore accumulated in the hands of a single person were parcelled out among a number of elective functionaries, the very name of the kingly office being retained and imposed on a personage known subsequently as the rex sacrorum or rex sacrificulus. as part of the change, the settled duties of the supreme judicial office devolved on the prætor, at the time the first functionary in the commonwealth, and together with these duties was transferred the undefined supremacy over law and legislation which always attached to ancient sovereigns and which is not obscurely related to the patriarchal and heroic authority they had once enjoyed. the circumstances of rome gave great importance to the more indefinite portion of the functions thus as transferred, as with the establishment of the republic began that series of recurrent trials which overtook the state, in the difficulty of dealing with a multitude of persons who, not coming within the technical description of indigenous romans, were nevertheless permanently located within roman jurisdiction. controversies between such persons, or between such persons and native-born citizens, would have remained without the pale of the remedies provided by roman law, if the prætor had not undertaken to decide them, and he must soon have addressed himself to the more critical disputes which in the extension of commerce arose between roman subjects and avowed foreigners. the great increase of such cases in the roman courts about the period of the first punic war is marked by the appointment of a special prætor, known subsequently as the prætor peregrinus, who gave them his undivided attention. meantime, one precaution of the roman people against the revival of oppression, had consisted in obliging every magistrate whose duties had any tendency to expand their sphere, to publish, on commencing his year of office, an edict or proclamation, in which he declared the manner in which he intended to administer his department. the prætor fell under the rule with other magistrates; but as it was necessarily impossible to construct each year a separate system of principles, he seems to have regularly republished his predecessor's edict with such additions and changes as the exigency of the moment or his own views of the law compelled him to introduce. the prætor's proclamation, thus lengthened by a new portion every year, obtained the name of the edictum perpetuum, that is, the _continuous_ or _unbroken_ edict. the immense length to which it extended, together perhaps with some distaste for its necessarily disorderly texture, caused the practice of increasing it to be stopped in the year of salvius julianus, who occupied the magistracy in the reign of the emperor hadrian. the edict of that prætor embraced therefore the whole body of equity jurisprudence, which it probably disposed in new and symmetrical order, and the perpetual edict is therefore often cited in roman law merely as the edict of julianus. perhaps the first inquiry which occurs to an englishman who considers the peculiar mechanism of the edict is, what were the limitations by which these extensive powers of the prætor were restrained? how was authority so little definite reconciled with a settled condition of society and of law? the answer can only be supplied by careful observation of the conditions under which our own english law is administered. the prætor, it should be recollected, was a jurisconsult himself, or a person entirely in the hands of advisers who were jurisconsults, and it is probable that every roman lawyer waited impatiently for the time when he should fill or control the great judicial magistracy. in the interval, his tastes, feelings, prejudices, and degree of enlightenment were inevitably those of his own order, and the qualifications which he ultimately brought to office were those which he had acquired in the practice and study of his profession. an english chancellor goes through precisely the same training, and carries to the woolsack the same qualifications. it is certain when he assumes office that he will have, to some extent, modified the law before he leaves it; but until he has quitted his seat, and the series of his decisions in the law reports has been completed, we cannot discover how far he has elucidated or added to the principles which his predecessors bequeathed to him. the influence of the prætor on roman jurisprudence differed only in respect of the period at which its amount was ascertained. as was before stated, he was in office but for a year, and his decisions rendered during his year, though of course irreversible as regarded the litigants, were of no ulterior value. the most natural moment for declaring the changes he proposed to effect occurred therefore at his entrance on the prætorship, and hence, when commencing his duties, he did openly and avowedly that which in the end his english representative does insensibly and sometimes unconsciously. the checks on this apparent liberty are precisely those imposed on an english judge. theoretically there seems to be hardly any limit to the powers of either of them, but practically the roman prætor, no less than the english chancellor, was kept within the narrowest bounds by the prepossessions imbibed from early training and by the strong restraints of professional opinion, restraints of which the stringency can only be appreciated by those who have personally experienced them. it may be added that the lines within which movement is permitted, and beyond which there is to be no travelling, were chalked with as much distinctness in the one case as in the other. in england the judge follows the analogies of reported decisions on insulated groups of facts. at rome, as the intervention of the prætor was at first dictated by simple concern for the safety of the state, it is likely that in the earliest times it was proportioned to the difficulty which it attempted to get rid of. afterwards, when the taste for principle had been diffused by the responses, he no doubt used the edict as the means of giving a wider application to those fundamental principles, which he and the other practising jurisconsults, his contemporaries, believed themselves to have detected underlying the law. latterly he acted wholly under the influence of greek philosophical theories, which at once tempted him to advance and confined him to a particular course of progress. the nature of the measures attributed to salvius julianus has been much disputed. whatever they were, their effects on the edict are sufficiently plain. it ceased to be extended by annual additions, and henceforward the equity jurisprudence of rome was developed by the labours of a succession of great jurisconsults who fill with their writings the interval between the reign of hadrian and the reign of alexander severus. a fragment of the wonderful system which they built up survives in the pandects of justinian, and supplies evidence that their works took the form of treatises on all parts of roman law, but chiefly that of commentaries on the edict. indeed, whatever be the immediate subject of a jurisconsult of this epoch, he may always be called an expositor of equity. the principles of the edict had, before the epoch of its cessation, made their way into every part of roman jurisprudence. the equity of rome, it should be understood, even when most distinct from the civil law, was always administered by the same tribunals. the prætor was the chief equity judge as well as the great common law magistrate, and as soon as the edict had evolved an equitable rule the prætor's court began to apply it in place of or by the side of the old rule of the civil law, which was thus directly or indirectly repealed without any express enactment of the legislature. the result, of course, fell considerably short of a complete fusion of law and equity, which was not carried out till the reforms of justinian. the technical severance of the two elements of jurisprudence entailed some confusion and some inconvenience, and there were certain of the stubborner doctrines of the civil law with which neither the authors nor the expositors of the edict had ventured to interfere. but at the same time there was no corner of the field of jurisprudence which was not more or less swept over by the influence of equity. it supplied the jurist with all his materials for generalisation, with all his methods of interpretation, with his elucidations of first principles, and with that great mass of limiting rules which are rarely interfered with by the legislator, but which seriously control the application of every legislative act. the period of jurists ends with alexander severus. from hadrian to that emperor the improvement of law was carried on, as it is at the present moment in most continental countries, partly by approved commentaries and partly by direct legislation. but in the reign of alexander severus the power of growth in roman equity seems to be exhausted, and the succession of jurisconsults comes to a close. the remaining history of the roman law is the history of the imperial constitutions, and, at the last, of attempts to codify what had now become the unwieldy body of roman jurisprudence. we have the latest and most celebrated experiment of this kind in the _corpus juris_ of justinian. it would be wearisome to enter on a detailed comparison or contrast of english and roman equity, but it may be worth while to mention two features which they have in common. the first may be stated as follows. each of them tended, and all such systems tend, to exactly the same state in which the old common law was when equity first interfered with it. a time always comes at which the moral principles originally adopted have been carried out to all their legitimate consequences, and then the system founded on them becomes as rigid, as unexpansive, and as liable to fall behind moral progress as the sternest code of rules avowedly legal. such an epoch was reached at rome in the reign of alexander severus; after which, though the whole roman world was undergoing a moral revolution, the equity of rome ceased to expand. the same point of legal history was attained in england under the chancellorship of lord eldon, the first of our equity judges who, instead of enlarging the jurisprudence of his court by indirect legislation, devoted himself through life to explaining and harmonising it. if the philosophy of legal history were better understood in england, lord eldon's services would be less exaggerated on the one hand and better appreciated on the other than they appear to be among contemporary lawyers. other misapprehensions too, which bear some practical fruit, would perhaps be avoided. it is easily seen by english lawyers that english equity is a system founded on moral rules; but it is forgotten that these rules are the morality of past centuries--not of the present--that they have received nearly as much application as they are capable of, and that though of course they do not differ largely from the ethical creed of our own day, they are not necessarily on a level with it. the imperfect theories of the subject which are commonly adopted have generated errors of opposite sorts. many writers of treatises on equity, struck with the completeness of the system in its present state, commit themselves expressly or implicitly to the paradoxical assertion that the founders of the chancery jurisprudence contemplated its present fixity of form when they were settling its first bases. others, again, complain--and this is a grievance frequently observed upon in forensic arguments--that the moral rules enforced by the court of chancery fall short of the ethical standard of the present day. they would have each lord chancellor perform precisely the same office for the jurisprudence which he finds ready to his hand, which was performed for the old common law by the fathers of english equity. but this is to invert the order of the agencies by which the improvement of the law is carried on. equity has its place and its time; but i have pointed out that another instrumentality is ready to succeed it when its energies are spent. another remarkable characteristic of both english and roman equity is the falsehood of the assumptions upon which the claim of the equitable to superiority over the legal rule is originally defended. nothing is more distasteful to men, either as individuals or as masses, than the admission of their moral progress as a substantive reality. this unwillingness shows itself, as regards individuals, in the exaggerated respect which is ordinarily paid to the doubtful virtue of consistency. the movement of the collective opinion of a whole society is too palpable to be ignored, and is generally too visible for the better to be decried; but there is the greatest disinclination to accept it as a primary phenomenon, and it is commonly explained as the recovery of a lost perfection--the gradual return to a state from which the race has lapsed. this tendency to look backward instead of forward for the goal of moral progress produced anciently, as we have seen, on roman jurisprudence effects the most serious and permanent. the roman jurisconsults, in order to account for the improvement of their jurisprudence by the prætor, borrowed from greece the doctrine of a natural state of man--a natural society--anterior to the organisation of commonwealths governed by positive laws. in england, on the other hand, a range of ideas especially congenial to englishmen of that day, explained the claim of equity to override the common law by supposing a general right to superintend the administration of justice which was assumed to be vested in the king as a natural result of his paternal authority. the same view appears in a different and a quainter form in the old doctrine that equity flowed from the king's conscience--the improvement which had in fact taken place in the moral standard of the community being thus referred to an inherent elevation in the moral sense of the sovereign. the growth of the english constitution rendered such a theory unpalatable after a time; but, as the jurisdiction of the chancery was then firmly established, it was not worth while to devise any formal substitute for it. the theories found in modern manuals of equity are very various, but all are alike in their untenability. most of them are modifications of the roman doctrine of a natural law, which is indeed adopted in tenour by those writers who begin a discussion of the jurisdiction of the court of chancery by laying down a distinction between natural justice and civil. chapter iv the modern history of the law of nature it will be inferred from what has been said that the theory which transformed the roman jurisprudence had no claim to philosophical precision. it involved, in fact, one of those "mixed modes of thought" which are now acknowledged to have characterised all but the highest minds during the infancy of speculation, and which are far from undiscoverable even in the mental efforts of our own day. the law of nature confused the past and the present. logically, it implied a state of nature which had once been regulated by natural law; yet the jurisconsults do not speak clearly or confidently of the existence of such a state, which indeed is little noticed by the ancients except where it finds a poetical expression in the fancy of a golden age. natural law, for all practical purposes, was something belonging to the present, something entwined with existing institutions, something which could be distinguished from them by a competent observer. the test which separated the ordinances of nature from the gross ingredients with which they were mingled was a sense of simplicity and harmony; yet it was not on account of their simplicity and harmony that these finer elements were primarily respected, but on the score of their descent from the aboriginal reign of nature. this confusion has not been successfully explained away by the modern disciples of the jurisconsults, and in truth modern speculations on the law of nature betray much more indistinctness of perception and are vitiated by much more hopeless ambiguity of language than the roman lawyers can be justly charged with. there are some writers on the subject who attempt to evade the fundamental difficulty by contending that the code of nature exists in the future and is the goal to which all civil laws are moving, but this is to reverse the assumptions on which the old theory rested, or rather perhaps to mix together two inconsistent theories. the tendency to look not to the past but to the future for types of perfection was brought into the world by christianity. ancient literature gives few or no hints of a belief that the progress of society is necessarily from worse to better. but the importance of this theory to mankind has been very much greater than its philosophical deficiencies would lead us to expect. indeed, it is not easy to say what turn the history of thought, and therefore, of the human race, would have taken, if the belief in a law natural had not become universal in the ancient world. there are two special dangers to which law, and society which is held together by law, appear to be liable in their infancy. one of them is that law may be too rapidly developed. this occurred with the codes of the more progressive greek communities, which disembarrassed themselves with astonishing facility from cumbrous forms of procedure and needless terms of art, and soon ceased to attach any superstitious value to rigid rules and prescriptions. it was not for the ultimate advantage of mankind that they did so, though the immediate benefit conferred on their citizens may have been considerable. one of the rarest qualities of national character is the capacity for applying and working out the law, as such, at the cost of constant miscarriages of abstract justice, without at the same time losing the hope or the wish that law may be conformed to a higher ideal. the greek intellect, with all its nobility and elasticity, was quite unable to confine itself within the strait waistcoat of a legal formula; and, if we may judge them by the popular courts of athens, of whose working we possess accurate knowledge, the greek tribunals exhibited the strongest tendency to confound law and fact. the remains of the orators and the forensic commonplaces preserved by aristotle in his treatise on rhetoric, show that questions of pure law were constantly argued on every consideration which could possibly influence the mind of the judges. no durable system of jurisprudence could be produced in this way. a community which never hesitated to relax rules of written law whenever they stood in the way of an ideally perfect decision on the facts of particular cases, would only, if it bequeathed any body of judicial principles to posterity, bequeath one consisting of the ideas of right and wrong which happened to be prevalent at the time. such a jurisprudence would contain no framework to which the more advanced conceptions of subsequent ages could be fitted. it would amount at best to a philosophy marked with the imperfections of the civilisation under which it grew up. few national societies have had their jurisprudence menaced by this peculiar danger of precocious maturity and untimely disintegration. it is certainly doubtful whether the romans were ever seriously threatened by it, but at any rate they had adequate protection in their theory of natural law. for the natural law of the jurisconsults was distinctly conceived by them as a system which ought gradually to absorb civil laws, without superseding them so long as they remained unrepealed. there was no such impression of its sanctity abroad, that an appeal to it would be likely to overpower the mind of a judge who was charged with the superintendence of a particular litigation. the value and serviceableness of the conception arose from its keeping before the mental vision a type of perfect law, and from its inspiring the hope of an indefinite approximation to it, at the same time that it never tempted the practitioner or the citizen to deny the obligation of existing laws which had not yet been adjusted to the theory. it is important too to observe that this model system, unlike many of those which have mocked men's hopes in later days, was not entirely the product of imagination. it was never thought of as founded on quite untested principles. the notion was that it underlay existing law and must be looked for through it. its functions were in short remedial, not revolutionary or anarchical. and this, unfortunately, is the exact point at which the modern view of a law of nature has often ceased to resemble the ancient. the other liability to which the infancy of society is exposed has prevented or arrested the progress of far the greater part of mankind. the rigidity of primitive law, arising chiefly from its early association and identification with religion, has chained down the mass of the human race to those views of life and conduct which they entertained at the time when their usages were first consolidated into a systematic form. there were one or two races exempted by a marvellous fate from this calamity, and grafts from these stocks have fertilised a few modern societies, but it is still true that, over the larger part of the world, the perfection of law has always been considered as consisting in adherence to the ground plan supposed to have been marked out by the original legislator. if intellect has in such cases been exercised on jurisprudence, it has uniformly prided itself on the subtle perversity of the conclusions it could build on ancient texts, without discoverable departure from their literal tenour. i know no reason why the law of the romans should be superior to the laws of the hindoos, unless the theory of natural law had given it a type of excellence different from the usual one. in this one exceptional instance, simplicity and symmetry were kept before the eyes of a society whose influence on mankind was destined to be prodigious from other causes, as the characteristics of an ideal and absolutely perfect law. it is impossible to overrate the importance to a nation or profession of having a distinct object to aim at in the pursuit of improvement. the secret of bentham's immense influence in england during the past thirty years is his success in placing such an object before the country. he gave us a clear rule of reform. english lawyers of the last century were probably too acute to be blinded by the paradoxical commonplace that english law was the perfection of human reason, but they acted as if they believed it for want of any other principle to proceed upon. bentham made the good of the community take precedence of every other object, and thus gave escape to a current which had long been trying to find its way outwards. it is not an altogether fanciful comparison if we call the assumptions we have been describing the ancient counterpart of benthamism. the roman theory guided men's efforts in the same direction as the theory put into shape by the englishman; its practical results were not widely different from those which would have been attained by a sect of law-reformers who maintained a steady pursuit of the general good of the community. it would be a mistake, however, to suppose it a conscious anticipation of bentham's principles. the happiness of mankind is, no doubt, sometimes assigned, both in the popular and in the legal literature of the romans, as the proper object of remedial legislation, but it is very remarkable how few and faint are the testimonies to this principle compared with the tributes which are constantly offered to the overshadowing claims of the law of nature. it was not to anything resembling philanthropy, but to their sense of simplicity and harmony--of what they significantly termed "elegance"--that the roman jurisconsults freely surrendered themselves. the coincidence of their labours with those which a more precise philosophy would have counselled has been part of the good fortune of mankind. turning to the modern history of the law of nature, we find it easier to convince ourselves of the vastness of its influence than to pronounce confidently whether that influence has been exerted for good or for evil. the doctrines and institutions which may be attributed to it are the material of some of the most violent controversies debated in our time, as will be seen when it is stated that the theory of natural law is the source of almost all the special ideas as to law, politics, and society which france during the last hundred years has been the instrument of diffusing over the western world. the part played by jurists in french history, and the sphere of jural conceptions in french thought, have always been remarkably large. it was not indeed in france, but in italy, that the juridical science of modern europe took its rise, but of the schools founded by emissaries of the italian universities in all parts of the continent, and attempted (though vainly) to be set up in our island, that established in france produced the greatest effect on the fortunes of the country. the lawyers of france immediately formed a strict alliance with the kings of the house of capet, and it was as much through their assertions of royal prerogative, and through their interpretations of the rules of feudal succession, as by the power of the sword, that the french monarchy at last grew together out of the agglomeration of provinces and dependencies. the enormous advantage which their understanding with the lawyers conferred on the french kings in the prosecution of their struggle with the great feudatories, the aristocracy, and the church, can only be appreciated if we take into account the ideas which prevailed in europe far down into the middle ages. there was, in the first place, a great enthusiasm for generalisation and a curious admiration for all general propositions, and consequently, in the field of law, an involuntary reverence for every general formula which seemed to embrace and sum up a number of the insulated rules which were practised as usages in various localities. such general formulas it was, of course, not difficult for practitioners familiar with the corpus juris or the glosses to supply in almost any quantity. there was, however, another cause which added yet more considerably to the lawyers' power. at the period of which we are speaking, there was universal vagueness of ideas as to the degree and nature of the authority residing in written texts of law. for the most part, the peremptory preface, _ita scriptum est_, seems to have been sufficient to silence all objections. where a mind of our own day would jealously scrutinise the formula which had been quoted, would inquire its source, and would (if necessary) deny that the body of law to which it belonged had any authority to supersede local customs, the elder jurist would not probably have ventured to do more than question the applicability of the rule, or at best cite some counter proposition from the pandects or the canon law. it is extremely necessary to bear in mind the uncertainty of men's notions on this most important side of juridical controversies, not only because it helps to explain the weight which the lawyers threw into the monarchical scale, but on account of the light which it sheds on several curious historical problems. the motives of the author of the forged decretals and his extraordinary success are rendered more intelligible by it. and, to take a phenomenon of smaller interest, it assists us, though only partially, to understand the plagiarisms of bracton. that an english writer of the time of henry iii. should have been able to put off on his countrymen as a compendium of pure english law a treatise of which the entire form and a third of the contents were directly borrowed from the corpus juris, and that he should have ventured on this experiment in a country where the systematic study of the roman law was formally proscribed, will always be among the most hopeless enigmas in the history of jurisprudence; but still it is something to lessen our surprise when we comprehend the state of opinion at the period as to the obligatory force of written texts, apart from all consideration of the source whence they were derived. when the kings of france had brought their long struggle for supremacy to a successful close, an epoch which may be placed roughly at the accession of the branch of valois-angoulême to the throne, the situation of the french jurists was peculiar and continued to be so down to the outbreak of the revolution. on the one hand, they formed the best instructed and nearly the most powerful class in the nation. they had made good their footing as a privileged order by the side of the feudal aristocracy, and they had assured their influence by an organisation which distributed their profession over france in great chartered corporations possessing large defined powers and still larger indefinite claims. in all the qualities of the advocate, the judge, and the legislator, they far excelled their compeers throughout europe. their juridical tact, their ease of expression, their fine sense of analogy and harmony, and (if they may be judged by the highest names among them) their passionate devotion to their conceptions of justice, were as remarkable as the singular variety of talent which they included, a variety covering the whole ground between the opposite poles of cujas and montesquieu, of d'aguesseau and dumoulin. but, on the other hand, the system of laws which they had to administer stood in striking contrast with the habits of mind which they had cultivated. the france which had been in great part constituted by their efforts was smitten with the curse of an anomalous and dissonant jurisprudence beyond every other country in europe. one great division ran through the country and separated it into _pays du droit ecrit_ and _pays du droit coutumier_, the first acknowledging the written roman law as the basis of their jurisprudence, the last admitting it only so far as it supplied general forms of expression, and courses of juridical reasoning which were reconcileable with the local usages. the sections thus formed were again variously subdivided. in the _pays du droit coutumier_ province differed from province, county from county, municipality from municipality, in the nature of its customs. in the _pays du droit ecrit_ the stratum of feudal rules which overlay the roman law was of the most miscellaneous composition. no such confusion as this ever existed in england. in germany it did exist, but was too much in harmony with the deep political and religious divisions of the country to be lamented or even felt. it was the special peculiarity of france that an extraordinary diversity of laws continued without sensible alteration while the central authority of the monarchy was constantly strengthening itself, while rapid approaches were being made to complete administrative unity, and while a fervid national spirit had been developed among the people. the contrast was one which fructified in many serious results, and among them we must rank the effect which it produced on the minds of the french lawyers. their speculative opinions and their intellectual bias were in the strongest opposition to their interests and professional habits. with the keenest sense and the fullest recognition of those perfections of jurisprudence which consist in simplicity and uniformity, they believed, or seemed to believe, that the vices which actually infested french law were ineradicable; and in practice they often resisted the reformation of abuses with an obstinacy which was not shown by many among their less enlightened countrymen. but there was a way to reconcile these contradictions. they became passionate enthusiasts for natural law. the law of nature overleapt all provincial and municipal boundaries; it disregarded all distinctions between noble and burgess, between burgess and peasant; it gave the most exalted place to lucidity, simplicity and system; but it committed its devotees to no specific improvement, and did not directly threaten any venerable or lucrative technicality. natural law may be said to have become the common law of france, or, at all events, the admission of its dignity and claims was the one tenet which all french practitioners alike subscribed to. the language of the præ-revolutionary jurists in its eulogy is singularly unqualified, and it is remarkable that the writers on the customs, who often made it their duty to speak disparagingly of the pure roman law, speak even more fervidly of nature and her rules than the civilians who professed an exclusive respect for the digest and the code. dumoulin, the highest of all authorities on old french customary law, has some extravagant passages on the law of nature; and his panegyrics have a peculiar rhetorical turn which indicated a considerable departure from the caution of the roman jurisconsults. the hypothesis of a natural law had become not so much a theory guiding practice as an article of speculative faith, and accordingly we shall find that, in the transformation which it more recently underwent, its weakest parts rose to the level of its strongest in the esteem of its supporters. the eighteenth century was half over when the most critical period in the history of natural law was reached. had the discussion of the theory and of its consequences continued to be exclusively the employment of the legal profession, there would possibly have been an abatement of the respect which it commanded; for by this time the _esprit des lois_ had appeared. bearing in some exaggerations the marks of the excessive violence with which its author's mind had recoiled from assumptions usually suffered to pass without scrutiny, yet showing in some ambiguities the traces of a desire to compromise with existing prejudice, the book of montesquieu, with all its defects, still proceeded on that historical method before which the law of nature has never maintained its footing for an instant. its influence on thought ought to have been as great as its general popularity; but, in fact, it was never allowed time to put it forth, for the counter-hypothesis which it seemed destined to destroy passed suddenly from the forum to the street, and became the key-note of controversies far more exciting than are ever agitated in the courts or the schools. the person who launched it on its new career was that remarkable man who, without learning, with few virtues, and with no strength of character, has nevertheless stamped himself ineffaceably on history by the force of a vivid imagination, and by the help of a genuine and burning love for his fellow-men, for which much will always have to be forgiven him. we have never seen in our own generation--indeed the world has not seen more than once or twice in all the course of history--a literature which has exercised such prodigious influence over the minds of men, over every cast and shade of intellect, as that which emanated from rousseau between 1749 and 1762. it was the first attempt to re-erect the edifice of human belief after the purely iconoclastic efforts commenced by bayle, and in part by our own locke, and consummated by voltaire; and besides the superiority which every constructive effort will always enjoy over one that is merely destructive, it possessed the immense advantage of appearing amid an all but universal scepticism as to the soundness of all foregone knowledge in matters speculative. now, in all the speculations of rousseau, the central figure, whether arrayed in an english dress as the signatory of a social compact, or simply stripped naked of all historical qualities, is uniformly man, in a supposed state of nature. every law or institution which would misbeseem this imaginary being under these ideal circumstances is to be condemned as having lapsed from an original perfection; every transformation of society which would give it a closer resemblance to the world over which the creature of nature reigned, is admirable and worthy to be effected at any apparent cost. the theory is still that of the roman lawyers, for in the phantasmagoria with which the natural condition is peopled, every feature and characteristic eludes the mind except the simplicity and harmony which possessed such charms for the jurisconsult; but the theory is, as it were, turned upside down. it is not the law of nature, but the state of nature, which is now the primary subject of contemplation. the roman had conceived that by careful observation of existing institutions parts of them could be singled out which either exhibited already, or could by judicious purification be made to exhibit, the vestiges of that reign of nature whose reality he faintly affirmed. rousseau's belief was that a perfect social order could be evolved from the unassisted consideration of the natural state, a social order wholly irrespective of the actual condition of the world and wholly unlike it. the great difference between the views is that one bitterly and broadly condemns the present for its unlikeness to the ideal past; while the other, assuming the present to be as necessary as the past, does not affect to disregard or censure it. it is not worth our while to analyse with any particularity that philosophy of politics, art, education, ethics, and social relation which was constructed on the basis of a state of nature. it still possesses singular fascination for the looser thinkers of every country, and is no doubt the parent, more or less remote, of almost all the prepossessions which impede the employment of the historical method of inquiry, but its discredit with the higher minds of our day is deep enough to astonish those who are familiar with the extraordinary vitality of speculative error. perhaps the question most frequently asked nowadays is not what is the value of these opinions, but what were the causes which gave them such overshadowing prominence a hundred years ago. the answer is, i conceive, a simple one. the study which in the last century would best have corrected the misapprehensions into which an exclusive attention to legal antiquities is apt to betray was the study of religion. but greek religion, as then understood, was dissipated in imaginative myths. the oriental religions, if noticed at all, appeared to be lost in vain cosmogonies. there was but one body of primitive records which was worth studying--the early history of the jews. but resort to this was prevented by the prejudices of the time. one of the few characteristics which the school of rousseau had in common with the school of voltaire was an utter disdain of all religious antiquities; and, more than all, of those of the hebrew race. it is well known that it was a point of honour with the reasoners of that day to assume not merely that the institutions called after moses were not divinely dictated, nor even that they were codified at a later date than that attributed to them, but that they and the entire pentateuch were a gratuitous forgery, executed after the return from the captivity. debarred, therefore, from one chief security against speculative delusion, the philosophers of france, in their eagerness to escape from what they deemed a superstition of the priests, flung themselves headlong into a superstition of the lawyers. but though the philosophy founded on the hypothesis of a state of nature has fallen low in general esteem, in so far as it is looked upon under its coarser and more palpable aspect, it does not follow that in its subtler disguises it has lost plausibility, popularity, or power. i believe, as i have said, that it is still the great antagonist of the historical method; and whenever (religious objections apart) any mind is seen to resist or contemn that mode of investigation, it will generally be found under the influence of a prejudice or vicious bias traceable to a conscious or unconscious reliance on a non-historic, natural, condition of society or the individual. it is chiefly, however, by allying themselves with political and social tendencies that the doctrines of nature and her law have preserved their energy. some of these tendencies they have stimulated, others they have actually created, to a great number they have given expression and form. they visibly enter largely into the ideas which constantly radiate from france over the civilised world, and thus become part of the general body of thought by which its civilisation is modified. the value of the influence which they thus exercise over the fortunes of the race is of course one of the points which our age debates most warmly, and it is beside the purpose of this treatise to discuss it. looking back, however, to the period at which the theory of the state of nature acquired the maximum of political importance, there are few who will deny that it helped most powerfully to bring about the grosser disappointments of which the first french revolution was fertile. it gave birth, or intense stimulus, to the vices of mental habit all but universal at the time, disdain of positive law, impatience of experience, and the preference of _à priori_ to all other reasoning. in proportion too as this philosophy fixes its grasp on minds which have thought less than others and fortified themselves with smaller observation, its tendency is to become distinctly anarchical. it is surprising to note how many of the _sophismes anarchiques_ which dumont published for bentham, and which embody bentham's exposure of errors distinctively french, are derived from the roman hypothesis in its french transformation, and are unintelligible unless referred to it. on this point too it is a curious exercise to consult the _moniteur_ during the principal eras of the revolution. the appeals to the law and state of nature become thicker as the times grow darker. they are comparatively rare in the constituent assembly; they are much more frequent in the legislative; in the convention, amid the din of debate on conspiracy and war, they are perpetual. there is a single example which very strikingly illustrates the effects of the theory of natural law on modern society, and indicates how very far are those effects from being exhausted. there cannot, i conceive, be any question that to the assumption of a law natural we owe the doctrine of the fundamental equality of human beings. that "all men are equal" is one of a large number of legal propositions which, in progress of time, have become political. the roman jurisconsults of the antonine era lay down that "omnes homines naturâ æquales sunt," but in their eyes this is a strictly juridical axiom. they intend to affirm that, under the hypothetical law of nature, and in so far as positive law approximates to it, the arbitrary distinctions which the roman civil law maintained between classes of persons cease to have a legal existence. the rule was one of considerable importance to the roman practitioner, who required to be reminded that, wherever roman jurisprudence was assumed to conform itself exactly to the code of nature, there was no difference in the contemplation of the roman tribunals between citizen and foreigner, between freeman and slave, between agnate and cognate. the jurisconsults who thus expressed themselves most certainly never intended to censure the social arrangements under which civil law fell somewhat short of its speculative type; nor did they apparently believe that the world would ever see human society completely assimilated to the economy of nature. but when the doctrine of human equality makes its appearance in a modern dress it has evidently clothed itself with a new shade of meaning. where the roman jurisconsult had written "æquales sunt," meaning exactly what he said, the modern civilian wrote "all men are equal" in the sense of "all men ought to be equal." the peculiar roman idea that natural law coexisted with civil law and gradually absorbed it, had evidently been lost sight of, or had become unintelligible, and the words which had at most conveyed a theory concerning the origin, composition, and development of human institutions, were beginning to express the sense of a great standing wrong suffered by mankind. as early as the beginning of the fourteenth century, the current language concerning the birth-state of men, though visibly intended to be identical with that of ulpian and his contemporaries, has assumed an altogether different form and meaning. the preamble to the celebrated ordinance of king louis hutin enfranchising the serfs of the royal domains would have sounded strangely to roman ears. "whereas, according to natural law, everybody ought to be born free; and by some usages and customs which, from long antiquity, have been introduced and kept until now in our realm, and peradventure by reason of the misdeeds of their predecessors, many persons of our common people have fallen into servitude, therefore, we, etc." this is the enunciation not of a legal rule but of a political dogma; and from this time the equality of men is spoken of by the french lawyers just as if it were a political truth which happened to have been preserved among the archives of their science. like all other deductions from the hypothesis of a law natural, and like the belief itself in a law of nature, it was languidly assented to and suffered to have little influence on opinion and practice until it passed out of the possession of the lawyers into that of the literary men of the eighteenth century and of the public which sat at their feet. with them it became the most distinct tenet of their creed, and was even regarded as a summary of all the others. it is probable, however, that the power which it ultimately acquired over the events of 1789 was not entirely owing to its popularity in france, for in the middle of the century it passed over to america. the american lawyers of the time, and particularly those of virginia, appear to have possessed a stock of knowledge which differed chiefly from that of their english contemporaries in including much which could only have been derived from the legal literature of continental europe. a very few glances at the writings of jefferson will show how strongly his mind was affected by the semi-juridical, semi-popular opinions which were fashionable in france, and we cannot doubt that it was sympathy with the peculiar ideas of the french jurists which led him and the other colonial lawyers who guided the course of events in america to join the specially french assumption that "all men are born equal" with the assumption, more familiar to englishmen, that "all men are born free," in the very first lines of their declaration of independence. the passage was one of great importance to the history of the doctrine before us. the american lawyers, in thus prominently and emphatically affirming the fundamental equality of human beings, gave an impulse to political movements in their own country, and in a less degree in great britain, which is far from having yet spent itself; but besides this they returned the dogma they had adopted to its home in france, endowed with vastly greater energy and enjoying much greater claims on general reception and respect. even the more cautious politicians of the first constituent assembly repeated ulpian's proposition as if it at once commended itself to the instincts and intuitions of mankind; and of all the "principles of 1789" it is the one which has been least strenuously assailed, which has most thoroughly leavened modern opinion, and which promises to modify most deeply the constitution of societies and the politics of states. the grandest function of the law of nature was discharged in giving birth to modern international law and to the modern law of war, but this part of its effects must here be dismissed with consideration very unequal to its importance. among the postulates which form the foundation of international law, or of so much of it as retains the figure which it received from its original architects, there are two or three of pre-eminent importance. the first of all is expressed in the position that there is a determinable law of nature. grotius and his successors took the assumption directly from the romans, but they differed widely from the roman jurisconsults and from each other in their ideas as to the mode of determination. the ambition of almost every publicist who has flourished since the revival of letters has been to provide new and more manageable definitions of nature and of her law, and it is indisputable that the conception in passing through the long series of writers on public law has gathered round it a large accretion, consisting of fragments of ideas derived from nearly every theory of ethics which has in its turn taken possession of the schools. yet it is a remarkable proof of the essentially historical character of the conception that, after all the efforts which have been made to evolve the code of nature from the necessary characteristics of the natural state, so much of the result is just what it would have been if men had been satisfied to adopt the dicta of the roman lawyers without questioning or reviewing them. setting aside the conventional or treaty law of nations, it is surprising how large a part of the system is made up of pure roman law. wherever there is a doctrine of the jurisconsults affirmed by them to be in harmony with the jus gentium, the publicists have found a reason for borrowing it, however plainly it may bear the marks of a distinctively roman origin. we may observe too that the derivative theories are afflicted with the weakness of the primary notion. in the majority of the publicists, the mode of thought is still "mixed." in studying these writers, the great difficulty is always to discover whether they are discussing law or morality--whether the state of international relations they describe is actual or ideal--whether they lay down that which is, or that which, in their opinion, ought to be. the assumption that natural law is binding on states _inter se_ is the next in rank of those which underlie international law. a series of assertions or admissions of this principle may be traced up to the very infancy of modern juridical science, and at first sight it seems a direct inference from the teaching of the romans. the civil condition of society being distinguished from the natural by the fact that in the first there is a distinct author of law, while in the last there is none, it appears as if the moment a number of _units_ were acknowledged to obey no common sovereign or political superior they were thrown back on the ulterior behests of the law natural. states are such units; the hypothesis of their independence excludes the notion of a common lawgiver, and draws with it, therefore, according to a certain range of ideas, the notion of subjection to the primeval order of nature. the alternative is to consider independent communities as not related to each other by any law, but this condition of lawlessness is exactly the vacuum which the nature of the jurisconsults abhorred. there is certainly apparent reason for thinking that if the mind of a roman lawyer rested on any sphere from which civil law was banished, it would instantly fill the void with the ordinances of nature. it is never safe, however, to assume that conclusions, however certain and immediate in our own eyes, were actually drawn at any period of history. no passage has ever been adduced from the remains of roman law which, in my judgment, proves the jurisconsults to have believed natural law to have obligatory force between independent commonwealths; and we cannot but see that to citizens of the roman empire who regarded their sovereign's dominions as conterminous with civilisation, the equal subjection of states to the law of nature, if contemplated at all, must have seemed at most an extreme result of curious speculation. the truth appears to be that modern international law, undoubted as is its descent from roman law, is only connected with it by an irregular filiation. the early modern interpreters of the jurisprudence of rome, misconceiving the meaning of jus gentium, assumed without hesitation that the romans had bequeathed to them a system of rules for the adjustment of international transactions. this "law of nations" was at first an authority which had formidable competitors to strive with, and the condition of europe was long such as to preclude its universal reception. gradually, however, the western world arranged itself in a form more favourable to the theory of the civilians; circumstances destroyed the credit of rival doctrines; and at last, at a peculiarly felicitous conjuncture, ayala and grotius were able to obtain for it the enthusiastic assent of europe, an assent which has been over and over again renewed in every variety of solemn engagement. the great men to whom its triumph is chiefly owing attempted, it need scarcely be said, to place it on an entirely new basis, and it is unquestionable that in the course of this displacement they altered much of its structure, though far less of it than is commonly supposed. having adopted from the antonine jurisconsults the position that the jus gentium and the jus naturæ were identical, grotius, with his immediate predecessors and his immediate successors, attributed to the law of nature an authority which would never perhaps have been claimed for it, if "law of nations" had not in that age been an ambiguous expression. they laid down unreservedly that natural law is the code of states, and thus put in operation a process which has continued almost down to our own day, the process of engrafting on the international system rules which are supposed to have been evolved from the unassisted contemplation of the conception of nature. there is too one consequence of immense practical importance to mankind which, though not unknown during the early modern history of europe, was never clearly or universally acknowledged till the doctrines of the grotian school had prevailed. if the society of nations is governed by natural law, the atoms which compose it must be absolutely equal. men under the sceptre of nature are all equal, and accordingly commonwealths are equal if the international state be one of nature. the proposition that independent communities, however different in size and power, are all equal in the view of the law of nations, has largely contributed to the happiness of mankind, though it is constantly threatened by the political tendencies of each successive age. it is a doctrine which probably would never have obtained a secure footing at all if international law had not been entirely derived from the majestic claims of nature by the publicists who wrote after the revival of letters. on the whole, however, it is astonishing, as i have observed before, how small a proportion the additions made to international law since grotius's day bear to the ingredients which have been simply taken from the most ancient stratum of the roman jus gentium. acquisition of territory has always been the great spur of national ambition, and the rules which govern this acquisition, together with the rules which moderate the wars in which it too frequently results, are merely transcribed from the part of the roman law which treats of the modes of acquiring property _jure gentium_. these modes of acquisition were obtained by the elder jurisconsults, as i have attempted to explain, by abstracting a common ingredient from the usages observed to prevail among the various tribes surrounding rome; and, having been classed on account of their origin in the "law common to all nations," they were thought by the later lawyers to fit in, on the score of their simplicity, with the more recent conception of a law natural. they thus made their way into the modern law of nations, and the result is that those parts of the international system which refer to _dominion_, its nature, its limitations, the modes of acquiring and securing it, are pure roman property law--so much, that is to say, of the roman law of property as the antonine jurisconsults imagined to exhibit a certain congruity with the natural state. in order that these chapters of international law may be capable of application, it is necessary that sovereigns should be related to each other like the members of a group of roman proprietors. this is another of the postulates which lie at the threshold of the international code, and it is also one which could not possibly have been subscribed to during the first centuries of modern european history. it is resolvable into the double proposition that "sovereignty is territorial," _i.e._ that it is always associated with the proprietorship of a limited portion of the earth's surface, and that "sovereigns _inter se_ are to be deemed not _paramount_, but _absolute_, owners of the state's territory." many contemporary writers on international law tacitly assume that the doctrines of their system, founded on principles of equity and common sense, were capable of being readily reasoned out in every stage of modern civilisation. but this assumption, while it conceals some real defects of the international theory, is altogether untenable, so far as regards a large part of modern history. it is not true that the authority of the jus gentium in the concerns of nations was always uncontradicted; on the contrary, it had to struggle long against the claims of several competing systems. it is again not true that the territorial character of sovereignty was always recognised, for long after the dissolution of the roman dominion the minds of men were under the empire of ideas irreconcileable with such a conception. an old order of things, and of views founded on it, had to decay--a new europe, and an apparatus of new notions congenial to it, had to spring up--before two of the chiefest postulates of international law could be universally conceded. it is a consideration well worthy to be kept in view, that during a large part of what we usually term modern history no such conception was entertained as that of "_territorial sovereignty_." sovereignty was not associated with dominion over a portion or subdivision of the earth. the world had lain for so many centuries under the shadow of imperial rome as to have forgotten that distribution of the vast spaces comprised in the empire which had once parcelled them out into a number of independent commonwealths, claiming immunity from extrinsic interference, and pretending to equality of national rights. after the subsidence of the barbarian irruptions, the notion of sovereignty that prevailed seems to have been twofold. on the one hand it assumed the form of what may be called "_tribe_-sovereignty." the franks, the burgundians, the vandals, the lombards, and visigoths were masters, of course, of the territories which they occupied, and to which some of them have given a geographical appellation; but they based no claim of right upon the fact of territorial possession, and indeed attached no importance to it whatever. they appear to have retained the traditions which they brought with them from the forest and the steppe, and to have still been in their own view a patriarchal society, a nomad horde, merely encamped for the time upon the soil which afforded them sustenance. part of transalpine gaul, with part of germany, had now become the country _de facto_ occupied by the franks--it was france; but the merovingian line of chieftains, the descendants of clovis, were not kings of france, they were kings of the franks. the alternative to this peculiar notion of sovereignty appears to have been--and this is the important point--the idea of universal dominion. the moment a monarch departed from the special relation of chief to clansmen, and became solicitous, for purposes of his own, to invest himself with a novel form of sovereignty, the only precedent which suggested itself for his adoption was the domination of the emperors of rome. to parody a common quotation, he became "_aut cæsar aut nullus_." either he pretended to the full prerogative of the byzantine emperor, or he had no political status whatever. in our own age, when a new dynasty is desirous of obliterating the prescriptive title of a deposed line of sovereigns, it takes its designation from the _people_, instead of the _territory_. thus we have emperors and kings of the french, and a king of the belgians. at the period of which we have been speaking, under similar circumstances a different alternative presented itself. the chieftain who would no longer call himself king of the tribe must claim to be emperor of the world. thus, when the hereditary mayors of the palace had ceased to compromise with the monarchs they had long since virtually dethroned, they soon became unwilling to call themselves kings of the franks, a title which belonged to the displaced merovings; but they could not style themselves kings of france, for such a designation, though apparently not unknown, was not a title of dignity. accordingly they came forward as aspirants to universal empire. their motive has been greatly misapprehended. it has been taken for granted by recent french writers that charlemagne was far before his age, quite as much in the character of his designs as in the energy with which he prosecuted them. whether it be true or not that anybody is at any time before his age, it is certainly true that charlemagne, in aiming at an unlimited dominion, was emphatically taking the only course which the characteristic ideas of his age permitted him to follow. of his intellectual eminence there cannot be a question, but it is proved by his acts and not by his theory. these singularities of view were not altered on the partition of the inheritance of charlemagne among his three grandsons. charles the bald, lewis, and lothair were still theoretically--if it be proper to use the word--emperors of rome. just as the cæsars of the eastern and western empires had each been _de jure_ emperor of the whole world, with _de facto_ control over half of it, so the three carlovingians appear to have considered their power as limited, but their title as unqualified. the same speculative universality of sovereignty continued to be associated with the imperial throne after the second division on the death of charles the fat, and, indeed, was never thoroughly dissociated from it so long as the empire of germany lasted. territorial sovereignty--the view which connects sovereignty with the possession of a limited portion of the earth's surface--was distinctly an offshoot, though a tardy one, of _feudalism_. this might have been expected _à priori_, for it was feudalism which for the first time linked personal duties, and by consequence personal rights, to the ownership of land. whatever be the proper view of its origin and legal nature, the best mode of vividly picturing to ourselves the feudal organisation is to begin with the basis, to consider the relation of the tenant to the patch of soil which created and limited his services--and then to mount up, through narrowing circles of super-feudation, till we approximate to the apex of the system. where that summit exactly was during the later portion of the dark ages it is not easy to decide. probably, wherever the conception of tribe sovereignty had really decayed, the topmost point was always assigned to the supposed successor of the cæsars of the west. but before long, when the actual sphere of imperial authority had immensely contracted, and when the emperors had concentrated the scanty remains of their power upon germany and north italy, the highest feudal superiors in all the outlying portions of the former carlovingian empire found themselves practically without a supreme head. gradually they habituated themselves to the new situation, and the fact of immunity put at last out of sight the theory of dependence; but there are many symptoms that this change was not quite easily accomplished; and, indeed, to the impression that in the nature of things there must necessarily be a culminating domination somewhere, we may, no doubt, refer the increasing tendency to attribute secular superiority to the see of rome. the completion of the first stage in the revolution of opinion is marked, of course, by the accession of the capetian dynasty in france. when the feudal prince of a limited territory surrounding paris began, from the accident of his uniting an unusual number of suzerainties in his own person, to call himself _king of france_, he became king in quite a new sense, a sovereign standing in the same relation to the soil of france as the baron to his estate, the tenant to his freehold. the precedent, however, was as influential as it was novel, and the form of the monarchy in france had visible effects in hastening changes which were elsewhere proceeding in the same direction. the kingship of our anglo-saxon regal houses was midway between the chieftainship of a tribe and a territorial supremacy; but the superiority of the norman monarchs, imitated from that of the king of france, was distinctly a territorial sovereignty. every subsequent dominion which was established or consolidated was formed on the later model. spain, naples, and the principalities founded on the ruins of municipal freedom in italy, were all under rulers whose sovereignty was territorial. few things, i may add, are more curious than the gradual lapse of the _venetians_ from one view to the other. at the commencement of its foreign conquests, the republic regarded itself as an antitype of the roman commonwealth, governing a number of subject provinces. move a century onwards, and you find that it wishes to be looked upon as a corporate sovereign, claiming the rights of a feudal suzerain over its possessions in italy and the ægean. during the period through which the popular ideas on the subject of sovereignty were undergoing this remarkable change, the system which stood in the place of what we now call international law, was heterogeneous in form and inconsistent in the principles to which it appealed. over so much of europe as was comprised in the romano-german empire, the connection of the confederate states was regulated by the complex and as yet incomplete mechanism of the imperial constitution; and, surprising as it may seem to us, it was a favourite notion of german lawyers that the relations of commonwealths, whether inside or outside the empire, ought to be regulated not by the _jus gentium_, but by the pure roman jurisprudence, of which cæsar was still the centre. this doctrine was less confidently repudiated in the outlying countries than we might have supposed antecedently; but, substantially, through the rest of europe feudal subordinations furnished a substitute for a public law; and when those were undetermined or ambiguous, there lay behind, in theory at least, a supreme regulating force in the authority of the head of the church. it is certain, however, that both feudal and ecclesiastical influences were rapidly decaying during the fifteenth, and even the fourteenth century; and if we closely examine the current pretexts of wars, and the avowed motives of alliances, it will be seen that, step by step with the displacement of the old principles, the views afterwards harmonised and consolidated by ayala and grotius were making considerable progress, though it was silent and but slow. whether the fusion of all the sources of authority would ultimately have evolved a system of international relations, and whether that system would have exhibited material differences from the fabric of grotius, is not now possible to decide, for as a matter of fact the reformation annihilated all its potential elements except one. beginning in germany, it divided the princes of the empire by a gulf too broad to be bridged over by the imperial supremacy, even if the imperial superior had stood neutral. he, however, was forced to take colour with the church against the reformers; the pope was, as a matter of course, in the same predicament; and thus the two authorities to whom belonged the office of mediation between combatants became themselves the chiefs of one great faction in the schism of the nations. feudalism, already enfeebled and discredited as a principle of public relations, furnished no bond whatever which was stable enough to countervail the alliances of religion. in a condition, therefore, of public law which was little less than chaotic, those views of a state system to which the roman jurisconsults were supposed to have given their sanction alone remained standing. the shape, the symmetry, and the prominence which they assumed in the hands of grotius are known to every educated man; but the great marvel of the treatise "de jure belli et pacis," was its rapid, complete, and universal success. the horrors of the thirty years' war, the boundless terror and pity which the unbridled license of the soldiery was exciting, must, no doubt, be taken to explain that success in some measure, but they do not wholly account for it. very little penetration into the ideas of that age is required to convince one that if the ground plan of the international edifice which was sketched in the great book of grotius had not appeared to be theoretically perfect, it would have been discarded by jurists and neglected by statesmen and soldiers. it is obvious that the speculative perfection of the grotian system is intimately connected with that conception of territorial sovereignty which we have been discussing. the theory of international law assumes that commonwealths are, relatively to each other, in a state of nature; but the component atoms of a natural society must, by the fundamental assumption, be insulated and independent of each other. if there be a higher power connecting them, however slightly and occasionally by the claim of common supremacy, the very conception of a common superior introduces the notion of positive law, and excludes the idea of a law natural. it follows, therefore, that if the universal suzerainty of an imperial head had been admitted even in bare theory, the labours of grotius would have been idle. nor is this the only point of junction between modern public law and those views of sovereignty of which i have endeavoured to describe the development. i have said that there are entire departments of international jurisprudence which consist of the roman law of property. what then is the inference? it is, that if there had been no such change as i have described in the estimate of sovereignty--if sovereignty had not been associated with the proprietorship of a limited portion of the earth, had not, in other words, become territorial--three parts of the grotian theory would have been incapable of application. chapter v primitive society and ancient law the necessity of submitting the subject of jurisprudence to scientific treatment has never been entirely lost sight of in modern times, and the essays which the consciousness of this necessity has produced have proceeded from minds of very various calibre, but there is not much presumption, i think, in asserting that what has hitherto stood in the place of a science has for the most part been a set of guesses, those very guesses of the roman lawyers which were examined in the two preceding chapters. a series of explicit statements, recognising and adopting these conjectural theories of a natural state, and of a system of principles congenial to it, has been continued with but brief interruption from the days of their inventors to our own. they appear in the annotations of the glossators who founded modern jurisprudence, and in the writings of the scholastic jurists who succeeded them. they are visible in the dogmas of the canonists. they are thrust into prominence by those civilians of marvellous erudition, who flourished at the revival of ancient letters. grotius and his successors invested them not less with brilliancy and plausibility than with practical importance. they may be read in the introductory chapters of our own blackstone, who has transcribed them textually from burlamaqui, and wherever the manuals published in the present day for the guidance of the student or the practitioner begin with any discussion of the first principles of law, it always resolves itself into a restatement of the roman hypothesis. it is however from the disguises with which these conjectures sometimes clothe themselves, quite as much as from their native form, that we gain an adequate idea of the subtlety with which they mix themselves in human thought. the lockeian theory of the origin of law in a social compact scarcely conceals its roman derivation, and indeed is only the dress by which the ancient views were rendered more attractive to a particular generation of the moderns; but on the other hand the theory of hobbes on the same subject was purposely devised to repudiate the reality of a law of nature as conceived by the romans and their disciples. yet these two theories, which long divided the reflecting politicians of england into hostile camps, resemble each other strictly in their fundamental assumption of a non-historic, unverifiable, condition of the race. their authors differed as to the characteristics of the præ-social state, and as to the nature of the abnormal action by which men lifted themselves out of it into that social organisation with which alone we are acquainted, but they agreed in thinking that a great chasm separated man in his primitive condition from man in society, and this notion we cannot doubt that they borrowed, consciously or unconsciously, from the romans. if indeed the phenomena of law be regarded in the way in which these theorists regarded them--that is, as one vast complex whole--it is not surprising that the mind should often evade the task it has set to itself by falling back on some ingenious conjecture which (plausibly interpreted) will seem to reconcile everything, or else that it should sometimes abjure in despair the labour of systematization. from the theories of jurisprudence which have the same speculative basis as the roman doctrine two of much celebrity must be excepted. the first of them is that associated with the great name of montesquieu. though there are some ambiguous expressions in the early part of the _esprit des lois_, which seem to show its writer's unwillingness to break quite openly with the views hitherto popular, the general drift of the book is certainly to indicate a very different conception of its subject from any which had been entertained before. it has often been noticed that, amidst the vast variety of examples which, in its immense width of survey, it sweeps together from supposed systems of jurisprudence, there is an evident anxiety to thrust into especial prominence those manners and institutions which astonish the civilised reader by their uncouthness, strangeness, or indecency. the inference constantly suggested is, that laws are the creatures of climate, local situation, accident, or imposture--the fruit of any causes except those which appear to operate with tolerable constancy. montesquieu seems, in fact, to have looked on the nature of man as entirely plastic, as passively reproducing the impressions, and submitting implicitly to the impulses, which it receives from without. and here no doubt lies the error which vitiates his system as a system. he greatly underrates the stability of human nature. he pays little or no regard to the inherited qualities of the race, those qualities which each generation receives from its predecessors, and transmits but slightly altered to the generation which follows it. it is quite true, indeed, that no complete account can be given of social phenomena, and consequently of laws, till due allowance has been made for those modifying causes which are noticed in the _esprit des lois_; but their number and their force appear to have been overestimated by montesquieu. many of the anomalies which he parades have since been shown to rest on false report or erroneous construction, and of those which remain not a few prove the permanence rather than the variableness of man's nature, since they are relics of older stages of the race which have obstinately defied the influences that have elsewhere had effect. the truth is that the stable part of our mental, moral, and physical constitution is the largest part of it, and the resistance it opposes to change is such that, though the variations of human society in a portion of the world are plain enough, they are neither so rapid nor so extensive that their amount, character, and general direction cannot be ascertained. an approximation to truth may be all that is attainable with our present knowledge, but there is no reason for thinking that is so remote, or (what is the same thing) that it requires so much future correction, as to be entirely useless and uninstructive. the other theory which has been adverted to is the historical theory of bentham. this theory which is obscurely (and, it might even be said, timidly) propounded in several parts of bentham's works is quite distinct from that analysis of the conception of law which he commenced in the "fragment on government," and which was more recently completed by mr. john austin. the resolution of a law into a command of a particular nature, imposed under special conditions, does not affect to do more than protect us against a difficulty--a most formidable one certainly--of language. the whole question remains open as to the motives of societies in imposing these commands on themselves, as to the connection of these commands with each other, and the nature of their dependence on those which preceded them, and which they have superseded. bentham suggests the answer that societies modify, and have always modified, their laws according to modifications of their views of general expediency. it is difficult to say that this proposition is false, but it certainly appears to be unfruitful. for that which seems expedient to a society, or rather to the governing part of it, when it alters a rule of law is surely the same thing as the object, whatever it may be, which it has in view when it makes the change. expediency and the greatest good are nothing more than different names for the impulse which prompts the modification; and when we lay down expediency as the rule of change in law or opinion, all we get by the proposition is the substitution of an express term for a term which is necessarily implied when we say that a change takes place. there is such wide-spread dissatisfaction with existing theories of jurisprudence, and so general a conviction that they do not really solve the questions they pretend to dispose of, as to justify the suspicion that some line of inquiry necessary to a perfect result has been incompletely followed or altogether omitted by their authors. and indeed there is one remarkable omission with which all these speculations are chargeable, except perhaps those of montesquieu. they take no account of what law has actually been at epochs remote from the particular period at which they made their appearance. their originators carefully observed the institutions of their own age and civilisation, and those of other ages and civilisations with which they had some degree of intellectual sympathy, but, when they turned their attention to archaic states of society which exhibited much superficial difference from their own, they uniformly ceased to observe and began guessing. the mistake which they committed is therefore analogous to the error of one who, in investigating the laws of the material universe, should commence by contemplating the existing physical world as a whole, instead of beginning with the particles which are its simplest ingredients. one does not certainly see why such a scientific solecism should be more defensible in jurisprudence than in any other region of thought. it would seem antecedently that we ought to commence with the simplest social forms in a state as near as possible to their rudimentary condition. in other words, if we followed the course usual in such inquiries, we should penetrate as far up as we could in the history of primitive societies. the phenomena which early societies present us with are not easy at first to understand, but the difficulty of grappling with them bears no proportion to the perplexities which beset us in considering the baffling entanglement of modern social organisation. it is a difficulty arising from their strangeness and uncouthness, not from their number and complexity. one does not readily get over the surprise which they occasion when looked at from a modern point of view; but when that is surmounted they are few enough and simple enough. but even if they gave more trouble than they do, no pains would be wasted in ascertaining the germs out of which has assuredly been unfolded every form of moral restraint which controls our actions and shapes our conduct at the present moment. the rudiments of the social state, so far as they are known to us at all, are known through testimony of three sorts--accounts by contemporary observers of civilisations less advanced than their own, the records which particular races have preserved concerning their primitive history, and ancient law. the first kind of evidence is the best we could have expected. as societies do not advance concurrently, but at different rates of progress, there have been epochs at which men trained to habits of methodical observation have really been in a position to watch and describe the infancy of mankind. tacitus made the most of such an opportunity; but the _germany_, unlike most celebrated classical books, has not induced others to follow the excellent example set by its author, and the amount of this sort of testimony which we possess is exceedingly small. the lofty contempt which a civilised people entertains for barbarous neighbours has caused a remarkable negligence in observing them, and this carelessness has been aggravated at times by fear, by religious prejudice, and even by the use of these very terms--civilisation and barbarism--which convey to most persons the impression of a difference not merely in degree but in kind. even the _germany_ has been suspected by some critics of sacrificing fidelity to poignancy of contrast and picturesqueness of narrative. other histories too, which have been handed down to us among the archives of the people to whose infancy they relate, have been thought distorted by the pride of race or by the religious sentiment of a newer age. it is important then to observe that these suspicions, whether groundless or rational, do not attach to a great deal of archaic law. much of the old law which has descended to us was preserved merely because it was old. those who practised and obeyed it did not pretend to understand it; and in some cases they even ridiculed and despised it. they offered no account of it except that it had come down to them from their ancestors. if we confine our attention, then, to those fragments of ancient institutions which cannot reasonably be supposed to have been tampered with, we are able to gain a clear conception of certain great characteristics of the society to which they originally belonged. advancing a step further, we can apply our knowledge to systems of law which, like the code of menu, are as a whole of suspicious authenticity; and, using the key we have obtained, we are in a position to discriminate those portions of them which are truly archaic from those which have been affected by the prejudices, interests, or ignorance of the compiler. it will at least be acknowledged that, if the materials for this process are sufficient, and if the comparisons be accurately executed, the methods followed are as little objectionable as those which have led to such surprising results in comparative philology. the effect of the evidence derived from comparative jurisprudence is to establish that view of the primeval condition of the human race which is known as the patriarchal theory. there is no doubt, of course, that this theory was originally based on the scriptural history of the hebrew patriarchs in lower asia; but, as has been explained already, its connection with scripture rather militated than otherwise against its reception as a complete theory, since the majority of the inquirers who till recently addressed themselves with most earnestness to the colligation of social phenomena, were either influenced by the strongest prejudice against hebrew antiquities or by the strongest desire to construct their system without the assistance of religious records. even now there is perhaps a disposition to undervalue these accounts, or rather to decline generalising from them, as forming part of the traditions of a semitic people. it is to be noted, however, that the legal testimony comes nearly exclusively from the institutions of societies belonging to the indo-european stock, the romans, hindoos, and sclavonians supplying the greater part of it; and indeed the difficulty at the present stage of the inquiry, is to know where to stop, to say of what races of men it is _not_ allowable to lay down that the society in which they are united was originally organised on the patriarchal model. the chief lineaments of such a society, as collected from the early chapters in genesis, i need not attempt to depict with any minuteness, both because they are familiar to most of us from our earliest childhood, and because, from the interest once attaching to the controversy which takes its name from the debate between locke and filmer, they fill a whole chapter, though not a very profitable one, in english literature. the points which lie on the surface of the history are these:--the eldest male parent--the eldest ascendant--is absolutely supreme in his household. his dominion extends to life and death, and is as unqualified over his children and their houses as over his slaves; indeed the relations of sonship and serfdom appear to differ in little beyond the higher capacity which the child in blood possesses of becoming one day the head of a family himself. the flocks and herds of the children are the flocks and herds of the father, and the possessions of the parent, which he holds in a representative rather than in a proprietary character, are equally divided at his death among his descendants in the first degree, the eldest son sometimes receiving a double share under the name of birthright, but more generally endowed with no hereditary advantage beyond an honorary precedence. a less obvious inference from the scriptural accounts is that they seem to plant us on the traces of the breach which is first effected in the empire of the parent. the families of jacob and esau separate and form two nations; but the families of jacob's children hold together and become a people. this looks like the immature germ of a state or commonwealth, and of an order of rights superior to the claims of family relation. if i were attempting for the more special purposes of the jurist to express compendiously the characteristics of the situation in which mankind disclose themselves at the dawn of their history, i should be satisfied to quote a few verses from the _odyssee_ of homer: [greek: toisin d out agorai boulêphoroi oute themistes. * * * themisteuei de ekastos paidôn êd alochôn, oud allêlôn alegousin.] "they have neither assemblies for consultation nor _themistes_, but every one exercises jurisdiction over his wives and his children, and they pay no regard to one another." these lines are applied to the cyclops, and it may not perhaps be an altogether fanciful idea when i suggest that the cyclops is homer's type of an alien and less advanced civilisation; for the almost physical loathing which a primitive community feels for men of widely different manners from its own usually expresses itself by describing them as monsters, such as giants, or even (which is almost always the case in oriental mythology) as demons. however that may be, the verses condense in themselves the sum of the hints which are given us by legal antiquities. men are first seen distributed in perfectly insulated groups, held together by obedience to the parent. law is the parent's word, but it is not yet in the condition of those _themistes_ which were analysed in the first chapter of this work. when we go forward to the state of society in which these early legal conceptions show themselves as formed, we find that they still partake of the mystery and spontaneity which must have seemed to characterise a despotic father's commands, but that at the same time, inasmuch as they proceed from a sovereign, they presuppose a union of family groups in some wider organisation. the next question is, what is the nature of this union and the degree of intimacy which it involves? it is just here that archaic law renders us one of the greatest of its services and fills up a gap which otherwise could only have been bridged by conjecture. it is full, in all its provinces, of the clearest indications that society in primitive times was not what it is assumed to be at present, a collection of _individuals_. in fact, and in the view of the men who composed it, it was _an aggregation of families_. the contrast may be most forcibly expressed by saying that the _unit_ of an ancient society was the family, of a modern society the individual. we must be prepared to find in ancient law all the consequences of this difference. it is so framed as to be adjusted to a system of small independent corporations. it is therefore scanty, because it is supplemented by the despotic commands of the heads of households. it is ceremonious, because the transactions to which it pays regard resemble international concerns much more than the quick play of intercourse between individuals. above all it has a peculiarity of which the full importance cannot be shown at present. it takes a view of _life_ wholly unlike any which appears in developed jurisprudence. corporations _never die_, and accordingly primitive law considers the entities with which it deals, _i.e._ the patriarchal or family groups, as perpetual and inextinguishable. this view is closely allied to the peculiar aspect under which, in very ancient times, moral attributes present themselves. the moral elevation and moral debasement of the individual appear to be confounded with, or postponed to, the merits and offences of the group to which the individual belongs. if the community sins, its guilt is much more than the sum of the offences committed by its members; the crime is a corporate act, and extends in its consequences to many more persons than have shared in its actual perpetration. if, on the other hand, the individual is conspicuously guilty, it is his children, his kinsfolk, his tribesmen, or his fellow-citizens, who suffer with him, and sometimes for him. it thus happens that the ideas of moral responsibility and retribution often seem to be more clearly realised at very ancient than at more advanced periods, for, as the family group is immortal, and its liability to punishment indefinite, the primitive mind is not perplexed by the questions which become troublesome as soon as the individual is conceived as altogether separate from the group. one step in the transition from the ancient and simple view of the matter to the theological or metaphysical explanations of later days is marked by the early greek notion of an inherited curse. the bequest received by his posterity from the original criminal was not a liability to punishment, but a liability to the commission of fresh offences which drew with them a condign retribution; and thus the responsibility of the family was reconciled with the newer phase of thought which limited the consequences of crime to the person of the actual delinquent. it would be a very simple explanation of the origin of society if we could base a general conclusion on the hint furnished us by the scriptural example already adverted to, and could suppose that communities began to exist wherever a family held together instead of separating at the death of its patriarchal chieftain. in most of the greek states and in rome there long remained the vestiges of an ascending series of groups out of which the state was at first constituted. the family, house, and tribe of the romans may be taken as the type of them, and they are so described to us that we can scarcely help conceiving them as a system of concentric circles which have gradually expanded from the same point. the elementary group is the family, connected by common subjection to the highest male ascendant. the aggregation of families forms the gens or house. the aggregation of houses makes the tribe. the aggregation of tribes constitutes the commonwealth. are we at liberty to follow these indications, and to lay down that the commonwealth is a collection of persons united by common descent from the progenitor of an original family? of this we may at least be certain, that all ancient societies regarded themselves as having proceeded from one original stock, and even laboured under an incapacity for comprehending any reason except this for their holding together in political union. the history of political ideas begins, in fact, with the assumption that kinship in blood is the sole possible ground of community in political functions; nor is there any of those subversions of feeling, which we term emphatically revolutions, so startling and so complete as the change which is accomplished when some other principle--such as that, for instance, of _local contiguity_--establishes itself for the first time as the basis of common political action. it may be affirmed then of early commonwealths that their citizens considered all the groups in which they claimed membership to be founded on common lineage. what was obviously true of the family was believed to be true first of the house, next of the tribe, lastly of the state. and yet we find that along with this belief, or, if we may use the word, this theory, each community preserved records or traditions which distinctly showed that the fundamental assumption was false. whether we look to the greek states, or to rome, or to the teutonic aristocracies in ditmarsh which furnished niebuhr with so many valuable illustrations, or to the celtic clan associations, or to that strange social organisation of the sclavonic russians and poles which has only lately attracted notice, everywhere we discover traces of passages in their history when men of alien descent were admitted to, and amalgamated with, the original brotherhood. adverting to rome singly, we perceive that the primary group, the family, was being constantly adulterated by the practice of adoption, while stories seem to have been always current respecting the exotic extraction of one of the original tribes and concerning a large addition to the houses made by one of the early kings. the composition of the state, uniformly assumed to be natural, was nevertheless known to be in great measure artificial. this conflict between belief or theory and notorious fact is at first sight extremely perplexing; but what it really illustrates is the efficiency with which legal fictions do their work in the infancy of society. the earliest and most extensively employed of legal fictions was that which permitted family relations to be created artificially, and there is none to which i conceive mankind to be more deeply indebted. if it had never existed, i do not see how any one of the primitive groups, whatever were their nature, could have absorbed another, or on what terms any two of them could have combined, except those of absolute superiority on one side and absolute subjection on the other. no doubt, when with our modern ideas we contemplate the union of independent communities, we can suggest a hundred modes of carrying it out, the simplest of all being that the individuals comprised in the coalescing groups shall vote or act together according to local propinquity; but the idea that a number of persons should exercise political rights in common simply because they happened to live within the same topographical limits was utterly strange and monstrous to primitive antiquity. the expedient which in those times commanded favour was that the incoming population should _feign themselves_ to be descended from the same stock as the people on whom they were engrafted; and it is precisely the good faith of this fiction, and the closeness with which it seemed to imitate reality, that we cannot now hope to understand. one circumstance, however, which it is important to recollect, is that the men who formed the various political groups were certainly in the habit of meeting together periodically, for the purpose of acknowledging and consecrating their association by common sacrifices. strangers amalgamated with the brotherhood were doubtless admitted to these sacrifices; and when that was once done we can believe that it seemed equally easy, or not more difficult, to conceive them as sharing in the common lineage. the conclusion then which is suggested by the evidence is, not that all early societies were formed by descent from the same ancestor, but that all of them which had any permanence and solidity either were so descended or assumed that they were. an indefinite number of causes may have shattered the primitive groups, but wherever their ingredients recombined, it was on the model or principle of an association of kindred. whatever were the fact, all thought, language, and law adjusted themselves to the assumption. but though all this seems to me to be established with reference to the communities with whose records we are acquainted, the remainder of their history sustains the position before laid down as to the essentially transient and terminable influence of the most powerful legal fictions. at some point of time--probably as soon as they felt themselves strong enough to resist extrinsic pressure--all these states ceased to recruit themselves by factitious extensions of consanguinity. they necessarily, therefore, became aristocracies, in all cases where a fresh population from any cause collected around them which could put in no claim to community of origin. their sternness in maintaining the central principle of a system under which political rights were attainable on no terms whatever except connection in blood, real or artificial, taught their inferiors another principle, which proved to be endowed with a far higher measure of vitality. this was the principle of _local contiguity_, now recognised everywhere as the condition of community in political functions. a new set of political ideas came at once into existence, which, being those of ourselves, our contemporaries, and in great measure of our ancestors, rather obscure our perception of the older theory which they vanquished and dethroned. the family then is the type of an archaic society in all the modifications which it was capable of assuming; but the family here spoken of is not exactly the family as understood by a modern. in order to reach the ancient conception we must give to our modern ideas an important extension and an important limitation. we must look on the family as constantly enlarged by the absorption of strangers within its circle, and we must try to regard the fiction of adoption as so closely simulating the reality of kinship that neither law nor opinion makes the slightest difference between a real and an adoptive connection. on the other hand, the persons theoretically amalgamated into a family by their common descent are practically held together by common obedience to their highest living ascendant, the father, grandfather, or great-grandfather. the patriarchal authority of a chieftain is as necessary an ingredient in the notion of the family group as the fact (or assumed fact) of its having sprung from his loins; and hence we must understand that if there be any persons who, however truly included in the brotherhood by virtue of their blood-relationship, have nevertheless _de facto_ withdrawn themselves from the empire of its ruler, they are always, in the beginnings of law, considered as lost to the family. it is this patriarchal aggregate--the modern family thus cut down on one side and extended on the other--which meets us on the threshold of primitive jurisprudence. older probably than the state, the tribe, and the house, it left traces of itself on private law long after the house and the tribe had been forgotten, and long after consanguinity had ceased to be associated with the composition of states. it will be found to have stamped itself on all the great departments of jurisprudence, and may be detected, i think, as the true source of many of their most important and most durable characteristics. at the outset, the peculiarities of law in its most ancient state lead us irresistibly to the conclusion that it took precisely the same view of the family group which is taken of individual men by the systems of rights and duties now prevalent throughout europe. there are societies open to our observation at this very moment whose laws and usages can scarcely be explained unless they are supposed never to have emerged from this primitive condition; but in communities more fortunately circumstanced the fabric of jurisprudence fell gradually to pieces, and if we carefully observe the disintegration we shall perceive that it took place principally in those portions of each system which were most deeply affected by the primitive conception of the family. in one all-important instance, that of the roman law, the change was effected so slowly, that from epoch to epoch we can observe the line and direction which it followed, and can even give some idea of the ultimate result to which it was tending. and, in pursuing this last inquiry, we need not suffer ourselves to be stopped by the imaginary barrier which separates the modern from the ancient world. for one effect of that mixture of refined roman law with primitive barbaric usage, which is known to us by the deceptive name of feudalism, was to revive many features of archaic jurisprudence which had died out of the roman world, so that the decomposition which had seemed to be over commenced again, and to some extent is still proceeding. on a few systems of law the family organisation of the earliest society has left a plain and broad mark in the life-long authority of the father or other ancestor over the person and property of his descendants, an authority which we may conveniently call by its later roman name of patria potestas. no feature of the rudimentary associations of mankind is deposed to by a greater amount of evidence than this, and yet none seems to have disappeared so generally and so rapidly from the usages of advancing communities. gaius, writing under the antonines, describes the institution as distinctively roman. it is true that, had he glanced across the rhine or the danube to those tribes of barbarians which were exciting the curiosity of some among his contemporaries, he would have seen examples of patriarchal power in its crudest form; and in the far east a branch of the same ethnical stock from which the romans sprang was repeating their patria potestas in some of its most technical incidents. but among the races understood to be comprised within the roman empire, gaius could find none which exhibited an institution resembling the roman "power of the father," except only the asiatic galatæ. there are reasons, indeed, as it seems to me, why the direct authority of the ancestor should, in the greater number of progressive societies, very shortly assume humbler proportions than belonged to it in their earliest state. the implicit obedience of rude men to their parent is doubtless a primary fact, which it would be absurd to explain away altogether by attributing to them any calculation of its advantages; but, at the same time, if it is natural in the sons to obey the father, it is equally natural that they should look to him for superior strength or superior wisdom. hence, when societies are placed under circumstances which cause an especial value to be attached to bodily and mental vigour, there is an influence at work which tends to confine the patria potestas to the cases where its possessor is actually skilful and strong. when we obtain our first glimpse of organised hellenic society, it seems as if supereminent wisdom would keep alive the father's power in persons whose bodily strength had decayed; but the relations of ulysses and laertes in the _odyssee_ appear to show that, where extraordinary valour and sagacity were united in the son, the father in the decrepitude of age was deposed from the headship of the family. in the mature greek jurisprudence, the rule advances a few steps on the practice hinted at in the homeric literature; and though very many traces of stringent family obligation remain, the direct authority of the parent is limited, as in european codes, to the nonage or minority of the children, or, in other words, to the period during which their mental and physical inferiority may always be presumed. the roman law, however, with its remarkable tendency to innovate on ancient usage only just so far as the exigency of the commonwealth may require, preserves both the primeval institution and the natural limitation to which i conceive it to have been subject. in every relation of life in which the collective community might have occasion to avail itself of his wisdom and strength, for all purposes of counsel or of war, the filius familias, or son under power, was as free as his father. it was a maxim of roman jurisprudence that the patria potestas did not extend to the jus publicum. father and son voted together in the city, and fought side by side in the field; indeed, the son, as general, might happen to command the father, or, as magistrate, decide on his contracts and punish his delinquencies. but in all the relations created by private law, the son lived under a domestic despotism which, considering the severity it retained to the last, and the number of centuries through which it endured, constitutes one of the strangest problems in legal history. the patria potestas of the romans, which is necessarily our type of the primeval paternal authority, is equally difficult to understand as an institution of civilised life, whether we consider its incidence on the person or its effects on property. it is to be regretted that a chasm which exists in its history cannot be more completely filled. so far as regards the person, the parent, when our information commences, has over his children the _jus vitæ necisque_, the power of life and death, and _à fortiori_ of uncontrolled corporal chastisement; he can modify their personal condition at pleasure; he can give a wife to his son; he can give his daughter in marriage; he can divorce his children of either sex; he can transfer them to another family by adoption; and he can sell them. late in the imperial period we find vestiges of all these powers, but they are reduced within very narrow limits. the unqualified right of domestic chastisement has become a right of bringing domestic offences under the cognisance of the civil magistrate; the privilege of dictating marriage has declined into a conditional veto; the liberty of selling has been virtually abolished, and adoption itself, destined to lose almost all its ancient importance in the reformed system of justinian, can no longer be effected without the assent of the child transferred to the adoptive parentage. in short, we are brought very close to the verge of the ideas which have at length prevailed in the modern world. but between these widely distant epochs there is an interval of obscurity, and we can only guess at the causes which permitted the patria potestas to last as long as it did by rendering it more tolerable than it appears. the active discharge of the most important among the duties which the son owed to the state must have tempered the authority of his parent if they did not annul it. we can readily persuade ourselves that the paternal despotism could not be brought into play without great scandal against a man of full age occupying a high civil office. during the earlier history, however, such cases of practical emancipation would be rare compared with those which must have been created by the constant wars of the roman republic. the military tribune and the private soldier who were in the field three-quarters of a year during the earlier contests, at a later period the proconsul in charge of a province, and the legionaries who occupied it, cannot have had practical reason to regard themselves as the slaves of a despotic master; and all these avenues of escape tended constantly to multiply themselves. victories led to conquests, conquests to occupations; the mode of occupation by colonies was exchanged for the system of occupying provinces by standing armies. each step in advance was a call for the expatriation of more roman citizens and a fresh draft on the blood of the failing latin race. we may infer, i think, that a strong sentiment in favour of the relaxation of the patria potestas had become fixed by the time that the pacification of the world commenced on the establishment of the empire. the first serious blows at the ancient institution are attributed to the earlier cæsars, and some isolated interferences of trajan and hadrian seem to have prepared the ground for a series of express enactments which, though we cannot always determine their dates, we know to have limited the father's powers on the one hand, and on the other to have multiplied facilities for their voluntary surrender. the older mode of getting rid of the potestas, by effecting a triple sale of the son's person, is evidence, i may remark, of a very early feeling against the unnecessary prolongation of the powers. the rule which declared that the son should be free after having been three times sold by his father seems to have been originally meant to entail penal consequences on a practice which revolted even the imperfect morality of the primitive roman. but even before the publication of the twelve tables it had been turned, by the ingenuity of the jurisconsults, into an expedient for destroying the parental authority wherever the father desired that it should cease. many of the causes which helped to mitigate the stringency of the father's power over the persons of his children are doubtless among those which do not lie upon the face of history. we cannot tell how far public opinion may have paralysed an authority which the law conferred, or how far natural affection may have rendered it endurable. but though the powers over the _person_ may have been latterly nominal, the whole tenour of the extant roman jurisprudence suggests that the father's rights over the son's _property_ were always exercised without scruple to the full extent to which they were sanctioned by law. there is nothing to astonish us in the latitude of these rights when they first show themselves. the ancient law of rome forbade the children under power to hold property apart from their parent, or (we should rather say) never contemplated the possibility of their claiming a separate ownership. the father was entitled to take the whole of the son's acquisitions, and to enjoy the benefit of his contracts without being entangled in any compensating liability. so much as this we should expect from the constitution of the earliest roman society, for we can hardly form a notion of the primitive family group unless we suppose that its members brought their earnings of all kinds into the common stock while they were unable to bind it by improvident individual engagements. the true enigma of the patria potestas does not reside here, but in the slowness with which these proprietary privileges of the parent were curtailed, and in the circumstance that, before they were seriously diminished, the whole civilised world was brought within their sphere. no innovation of any kind was attempted till the first years of the empire, when the acquisitions of soldiers on service were withdrawn from the operation of the patria potestas, doubtless as part of the reward of the armies which had overthrown the free commonwealth. three centuries afterwards the same immunity was extended to the earnings of persons who were in the civil employment of the state. both changes were obviously limited in their application, and they were so contrived in technical form as to interfere as little as possible with the principle of patria potestas. a certain qualified and dependent ownership had always been recognised by the roman law in the perquisites and savings which slaves and sons under power were not compelled to include in the household accounts, and the special name of this permissive property, peculium, was applied to the acquisitions newly relieved from patria potestas, which were called in the case of soldiers castrense peculium, and quasi-castrense peculium in the case of civil servants. other modifications of the parental privileges followed, which showed a less studious outward respect for the ancient principle. shortly after the introduction of the quasi-castrense peculium, constantine the great took away the father's absolute control over property which his children had inherited from their mother, and reduced it to a _usufruct_, or life-interest. a few more changes of slight importance followed in the western empire, but the furthest point reached was in the east, under justinian, who enacted that unless the acquisitions of the child were derived from the parent's own property, the parent's rights over them should not extend beyond enjoying their produce for the period of his life. even this, the utmost relaxation of the roman patria potestas, left it far ampler and severer than any analogous institution of the modern world. the earliest modern writers on jurisprudence remark that it was only the fiercer and ruder of the conquerors of the empire, and notably the nations of sclavonic origin, which exhibited a patria potestas at all resembling that which was described in the pandects and the code. all the germanic immigrants seem to have recognised a corporate union of the family under the _mund_, or authority of a patriarchal chief; but his powers are obviously only the relics of a decayed patria potestas, and fell far short of those enjoyed by the roman father. the franks are particularly mentioned as not having the roman institution, and accordingly the old french lawyers, even when most busily engaged in filling the interstices of barbarous custom with rules of roman law, were obliged to protect themselves against the intrusion of the potestas by the express maxim, _puyssance de père en france n'a lieu_. the tenacity of the romans in maintaining this relic of their most ancient condition is in itself remarkable, but it is less remarkable than the diffusion of the potestas over the whole of a civilisation from which it had once disappeared. while the castrense peculium constituted as yet the sole exception to the father's power over property, and while his power over his children's persons was still extensive, the roman citizenship, and with it the patria potestas, were spreading into every corner of the empire. every african or spaniard, every gaul, briton, or jew, who received this honour by gift, purchase, or inheritance, placed himself under the roman law of persons, and, though our authorities intimate that children born before the acquisition of citizenship could not be brought under power against their will, children born after it and all ulterior descendants were on the ordinary footing of a roman _filius familias_. it does not fall within the province of this treatise to examine the mechanism of the later roman society, but i may be permitted to remark that there is little foundation for the opinion which represents the constitution of antoninus caracalla conferring roman citizenship on the whole of his subjects as a measure of small importance. however we may interpret it, it must have enormously enlarged the sphere of the patria potestas, and it seems to me that the tightening of family relations which it effected is an agency which ought to be kept in view more than it has been, in accounting for the great moral revolution which was transforming the world. before this branch of our subject is dismissed, it should be observed that the paterfamilias was answerable for the delicts (or _torts_) of his sons under power. he was similarly liable for the torts of his slaves; but in both cases he originally possessed the singular privilege of tendering the delinquent's person in full satisfaction of the damage. the responsibility thus incurred on behalf of sons, coupled with the mutual incapacity of parent and child under power to sue one another, has seemed to some jurists to be best explained by the assumption of a "unity of person" between the paterfamilias and the filius-familias. in the chapter on successions i shall attempt to show in what sense, and to what extent, this "unity" can be accepted as a reality. i can only say at present that these responsibilities of the paterfamilias, and other legal phenomena which will be discussed hereafter, appear to me to point at certain _duties_ of the primitive patriarchal chieftain which balanced his _rights_. i conceive that, if he disposed absolutely of the persons and fortune of his clansmen, this representative ownership was coextensive with a liability to provide for all members of the brotherhood out of the common fund. the difficulty is to throw ourselves out of our habitual associations sufficiently for conceiving the nature of his obligation. it was not a legal duty, for law had not yet penetrated into the precinct of the family. to call it _moral_ is perhaps to anticipate the ideas belonging to a later stage of mental development; but the expression "moral obligation" is significant enough for our purpose, if we understand by it a duty semi-consciously followed and enforced rather by instinct and habit than by definite sanctions. the patria potestas, in its normal shape, has not been, and, as it seems to me, could not have been, a generally durable institution. the proof of its former universality is therefore incomplete so long as we consider it by itself; but the demonstration may be carried much further by examining other departments of ancient law which depend on it ultimately, but not by a thread of connection visible in all its parts or to all eyes. let us turn for example to kinship, or in other words, to the scale on which the proximity of relatives to each other is calculated in archaic jurisprudence. here again it will be convenient to employ the roman terms, agnatic and cognatic relationship. _cognatic_ relationship is simply the conception of kinship familiar to modern ideas; it is the relationship arising through common descent from the same pair of married persons, whether the descent be traced through males or females. _agnatic_ relationship is something very different: it excludes a number of persons whom we in our day should certainly consider of kin to ourselves, and it includes many more whom we should never reckon among our kindred. it is in truth the connection existing between the members of the family, conceived as it was in the most ancient times. the limits of this connection are far from conterminous with those of modern relationship. cognates then are all those persons who can trace their blood to a single ancestor and ancestress; or, if we take the strict technical meaning of the word in roman law, they are all who trace their blood to the legitimate marriage of a common pair. "cognation" is therefore a relative term, and the degree of connection in blood which it indicates depends on the particular marriage which is selected as the commencement of the calculation. if we begin with the marriage of father and mother, cognation will only express the relationship of brothers and sisters; if we take that of the grandfather and grandmother, then uncles, aunts, and their descendants will also be included in the notion of cognation, and following the same process a larger number of cognates may be continually obtained by choosing the starting point higher and higher up in the line of ascent. all this is easily understood by a modern; but who are the agnates? in the first place, they are all the cognates who trace their connection exclusively through males. a table of cognates is, of course, formed by taking each lineal ancestor in turn and including all his descendants of both sexes in the tabular view; if then, in tracing the various branches of such a genealogical table or tree, we stop whenever we come to the name of a female and pursue that particular branch or ramification no further, all who remain after the descendants of women have been excluded are agnates, and their connection together is agnatic relationship. i dwell a little on the process which is practically followed in separating them from the cognates, because it explains a memorable legal maxim, "mulier est finis familiæ"--a woman is the terminus of the family. a female name closes the branch or twig of the genealogy in which it occurs. none of the descendants of a female are included in the primitive notion of family relationship. if the system of archaic law at which we are looking be one which admits adoption, we must add to the agnate thus obtained all persons, male or female, who have been brought into the family by the artificial extension of its boundaries. but the descendants of such persons will only be agnates, if they satisfy the conditions which have just been described. what then is the reason of this arbitrary inclusion and exclusion? why should a conception of kinship, so elastic as to include strangers brought into the family by adoption, be nevertheless so narrow as to shut out the descendants of a female member? to solve these questions, we must recur to the patria potestas. the foundation of agnation is not the marriage of father and mother, but the authority of the father. all persons are agnatically connected together who are under the same paternal power, or who have been under it, or who might have been under it if their lineal ancestor had lived long enough to exercise his empire. in truth, in the primitive view, relationship is exactly limited by patria potestas. where the potestas begins, kinship begins; and therefore adoptive relatives are among the kindred. where the potestas ends, kinship ends; so that a son emancipated by his father loses all rights of agnation. and here we have the reason why the descendants of females are outside the limits of archaic kinship. if a woman died unmarried, she could have no legitimate descendants. if she married, her children fell under the patria potestas, not of her father, but of her husband, and thus were lost to her own family. it is obvious that the organisation of primitive societies would have been confounded, if men had called themselves relatives of their mother's relatives. the inference would have been that a person might be subject to two distinct patriæ potestates; but distinct patriæ potestates implied distinct jurisdictions, so that anybody amenable to two of them at the same time would have lived under two different dispensations. as long as the family was an imperium in imperio, a community within the commonwealth, governed by its own institutions of which the parent was the source, the limitation of relationship to the agnates was a necessary security against a conflict of laws in the domestic forum. the parental powers proper are extinguished by the death of the parent, but agnation is as it were a mould which retains their imprint after they have ceased to exist. hence comes the interest of agnation for the inquirer into the history of jurisprudence. the powers themselves are discernible in comparatively few monuments of ancient law, but agnatic relationship, which implies their former existence, is discoverable almost everywhere. there are few indigenous bodies of law belonging to communities of the indo-european stock, which do not exhibit peculiarities in the most ancient part of their structure which are clearly referable to agnation. in hindoo law, for example, which is saturated with the primitive notions of family dependency, kinship is entirely agnatic, and i am informed that in hindoo genealogies the names of women are generally omitted altogether. the same view of relationship pervades so much of the laws of the races who overran the roman empire as appears to have really formed part of their primitive usage, and we may suspect that it would have perpetuated itself even more than it has in modern european jurisprudence, if it had not been for the vast influence of the later roman law on modern thought. the prætors early laid hold on cognation as the _natural_ form of kinship, and spared no pains in purifying their system from the older conception. their ideas have descended to us, but still traces of agnation are to be seen in many of the modern rules of succession after death. the exclusion of females and their children from governmental functions, commonly attributed to the usage of the salian franks, has certainly an agnatic origin, being descended from the ancient german rule of succession to allodial property. in agnation too is to be sought the explanation of that extraordinary rule of english law, only recently repealed, which prohibited brothers of the half-blood from succeeding to one another's lands. in the customs of normandy, the rule applies to _uterine_ brothers only, that is, to brothers by the same mother but not by the same father; and, limited in this way, it is a strict deduction from the system of agnation, under which uterine brothers are no relations at all to one another. when it was transplanted to england, the english judges, who had no clue to its principle, interpreted it as a general prohibition against the succession of the half-blood, and extended it to _consanguineous_ brothers, that is to sons of the same father by different wives. in all the literature which enshrines the pretended philosophy of law, there is nothing more curious than the pages of elaborate sophistry in which blackstone attempts to explain and justify the exclusion of the half-blood. it may be shown, i think, that the family, as held together by the patria potestas, is the nidus out of which the entire law of persons has germinated. of all the chapters of that law the most important is that which is concerned with the status of females. it has just been stated that primitive jurisprudence, though it does not allow a woman to communicate any rights of agnation to her descendants, includes herself nevertheless in the agnatic bond. indeed, the relation of a female to the family in which she was born is much stricter, closer, and more durable than that which unites her male kinsmen. we have several times laid down that early law takes notice of families only; this is the same thing as saying that it only takes notice of persons exercising patria potestas, and accordingly the only principle on which it enfranchises a son or grandson at the death of his parent, is a consideration of the capacity inherent in such son or grandson to become himself the head of a new family and the root of a new set of parental powers. but a woman, of course, has no capacity of the kind, and no title accordingly to the liberation which it confers. there is therefore a peculiar contrivance of archaic jurisprudence for retaining her in the bondage of the family for life. this is the institution known to the oldest roman law as the perpetual tutelage of women, under which a female, though relieved from her parent's authority by his decease, continues subject through life to her nearest male relations as her guardians. perpetual guardianship is obviously neither more nor less than an artificial prolongation of the patria potestas, when for other purposes it has been dissolved. in india, the system survives in absolute completeness, and its operation is so strict that a hindoo mother frequently becomes the ward of her own sons. even in europe, the laws of the scandinavian nations respecting women preserved it until quite recently. the invaders of the western empire had it universally among their indigenous usages, and indeed their ideas on the subject of guardianship, in all its forms, were among the most retrogressive of those which they introduced into the western world. but from the mature roman jurisprudence it had entirely disappeared. we should know almost nothing about it, if we had only the compilations of justinian to consult; but the discovery of the manuscript of gaius discloses it to us at a most interesting epoch, just when it had fallen into complete discredit and was verging on extinction. the great jurisconsult himself scouts the popular apology offered for it in the mental inferiority of the female sex, and a considerable part of his volume is taken up with descriptions of the numerous expedients, some of them displaying extraordinary ingenuity, which the roman lawyers had devised for enabling women to defeat the ancient rules. led by their theory of natural law, the jurisconsults had evidently at this time assumed the equality of the sexes as a principle of their code of equity. the restrictions which they attacked were, it is to be observed, restrictions on the disposition of property, for which the assent of the woman's guardians was still formally required. control of her person was apparently quite obsolete. ancient law subordinates the woman to her blood-relations, while a prime phenomenon of modern jurisprudence has been her subordination to her husband. the history of the change is remarkable. it begins far back in the annals of rome. anciently, there were three modes in which marriage might be contracted according to roman usage, one involving a religious solemnity, the other two the observance of certain secular formalities. by the religious marriage or _confarreation_; by the higher form of civil marriage, which was called _coemption_; and by the lower form, which was termed _usus_, the husband acquired a number of rights over the person and property of his wife, which were on the whole in excess of such as are conferred on him in any system of modern jurisprudence. but in what capacity did he acquire them? not as _husband_, but as _father_. by the confarreation, coemption, and usus, the woman passed _in manum viri_, that is, in law she became the _daughter_ of her husband. she was included in his patria potestas. she incurred all the liabilities springing out of it while it subsisted, and surviving it when it had expired. all her property became absolutely his, and she was retained in tutelage after his death to the guardian whom he had appointed by will. these three ancient forms of marriage fell, however, gradually into disuse, so that, at the most splendid period of roman greatness, they had almost entirely given place to a fashion of wedlock--old apparently, but not hitherto considered reputable--which was founded on a modification of the lower form of civil marriage. without explaining the technical mechanism of the institution now generally popular, i may describe it as amounting in law to little more than a temporary deposit of the woman by her family. the rights of the family remained unimpaired, and the lady continued in the tutelage of guardians whom her parents had appointed and whose privileges of control overrode, in many material respects, the inferior authority of her husband. the consequence was that the situation of the roman female, whether married or unmarried, became one of great personal and proprietary independence, for the tendency of the later law, as i have already hinted, was to reduce the power of the guardian to a nullity, while the form of marriage in fashion conferred on the husband no compensating superiority. but christianity tended somewhat from the very first to narrow this remarkable liberty. led at first by justifiable disrelish for the loose practices of the decaying heathen world, but afterwards hurried on by a passion of asceticism, the professors of the new faith looked with disfavour on a marital tie which was in fact the laxest the western world has seen. the latest roman law, so far as it is touched by the constitutions of the christian emperors, bears some marks of a reaction against the liberal doctrines of the great antonine jurisconsults. and the prevalent state of religious sentiment may explain why it is that modern jurisprudence, forged in the furnace of barbarian conquest, and formed by the fusion of roman jurisprudence with patriarchal usage, has absorbed, among its rudiments, much more than usual of those rules concerning the position of women which belong peculiarly to an imperfect civilisation. during the troubled era which begins modern history, and while the laws of the germanic and sclavonic immigrants remained superposed like a separate layer above the roman jurisprudence of their provincial subjects, the women of the dominant races are seen everywhere under various forms of archaic guardianship, and the husband who takes a wife from any family except his own pays a money-price to her relations for the tutelage which they surrender to him. when we move onwards, and the code of the middle ages has been formed by the amalgamation of the two systems, the law relating to women carries the stamp of its double origin. the principle of the roman jurisprudence is so far triumphant that unmarried females are generally (though there are local exceptions to the rule) relieved from the bondage of the family; but the archaic principle of the barbarians has fixed the position of married women, and the husband has drawn to himself in his marital character the powers which had once belonged to his wife's male kindred, the only difference being that he no longer purchases his privileges. at this point therefore the modern law of western and southern europe begins to be distinguished by one of its chief characteristics, the comparative freedom it allows to unmarried women and widows, the heavy disabilities it imposes on wives. it was very long before the subordination entailed on the other sex by marriage was sensibly diminished. the principal and most powerful solvent of the revived barbarism of europe was always the codified jurisprudence of justinian, wherever it was studied with that passionate enthusiasm which it seldom failed to awaken. it covertly but most efficaciously undermined the customs which it pretended merely to interpret. but the chapter of law relating to married women was for the most part read by the light, not of roman, but of canon law, which in no one particular departs so widely from the spirit of the secular jurisprudence as in the view it takes of the relations created by marriage. this was in part inevitable, since no society which preserves any tincture of christian institution is likely to restore to married women the personal liberty conferred on them by the middle roman law, but the proprietary disabilities of married females stand on quite a different basis from their personal incapacities, and it is by keeping alive and consolidating the former that the expositors of the canon law have deeply injured civilisation. there are many vestiges of a struggle between the secular and ecclesiastical principles, but the canon law nearly everywhere prevailed. in some of the french provinces married women, of a rank below nobility, obtained all the powers of dealing with property which roman jurisprudence had allowed, and this local law has been largely followed by the code napoléon; but the state of the scottish law shows that scrupulous deference to the doctrines of the roman jurisconsults did not always extend to mitigating the disabilities of wives. the systems however which are least indulgent to married women are invariably those which have followed the canon law exclusively, or those which, from the lateness of their contact with european civilisation, have never had their archaisms weeded out. the scandinavian laws, harsh till lately to all females, are still remarkable for their severity to wives. and scarcely less stringent in the proprietary incapacities it imposes is the english common law, which borrows far the greatest number of its fundamental principles from the jurisprudence of the canonists. indeed, the part of the common law which prescribes the legal situation of married women may serve to give an englishman clear notions of the great institution which has been the principal subject of this chapter. i do not know how the operation and nature of the ancient patria potestas can be brought so vividly before the mind as by reflecting on the prerogatives attached to the husband by the pure english common law, and by recalling the rigorous consistency with which the view of a complete legal subjection on the part of the wife is carried by it, where it is untouched by equity or statutes, through every department of rights, duties, and remedies. the distance between the eldest and latest roman law on the subject of children under power may be considered as equivalent to the difference between the common law and the jurisprudence of the court of chancery in the rules which they respectively apply to wives. if we were to lose sight of the true origin of guardianship in both its forms and were to employ the common language on these topics, we should find ourselves remarking that, while the tutelage of women is an instance in which systems of archaic law push to an extravagant length the fiction of suspended rights, the rules which they lay down for the guardianship of male orphans are an example of a fault in precisely the opposite direction. all such systems terminate the tutelage of males at an extraordinary early period. under the ancient roman law, which may be taken as their type, the son who was delivered from patria potestas by the death of his father or grandfather remained under guardianship till an epoch which for general purposes may be described as arriving with his fifteenth year; but the arrival of that epoch placed him at once in the full enjoyment of personal and proprietary independence. the period of minority appears therefore to have been as unreasonably short as the duration of the disabilities of women was preposterously long. but, in point of fact, there was no element either of excess or of shortcoming in the circumstances which gave their original form to the two kinds of guardianship. neither the one nor the other of them was based on the slightest consideration of public or private convenience. the guardianship of male orphans was no more designed originally to shield them till the arrival of years of discretion than the tutelage of women was intended to protect the other sex against its own feebleness. the reason why the death of the father delivered the son from the bondage of the family was the son's capacity for becoming himself the head of a new family and the founder of a new patria potestas; no such capacity was possessed by the woman and therefore she was _never_ enfranchised. accordingly the guardianship of male orphans was a contrivance for keeping alive the semblance of subordination to the family of the parent, up to the time when the child was supposed capable of becoming a parent himself. it was a prolongation of the patria potestas up to the period of bare physical manhood. it ended with puberty, for the rigour of the theory demanded that it should do so. inasmuch, however, as it did not profess to conduct the orphan ward to the age of intellectual maturity or fitness for affairs, it was quite unequal to the purposes of general convenience; and this the romans seem to have discovered at a very early stage of their social progress. one of the very oldest monuments of roman legislation is the _lex lætoria_ or _plætoria_ which placed all free males who were of full years and rights under the temporary control of a new class of guardians, called _curatores_, whose sanction was required to validate their acts or contracts. the twenty-sixth year of the young man's age was the limit of this statutory supervision; and it is exclusively with reference to the age of twenty-five that the terms "majority" and "minority" are employed in roman law. _pupilage_ or _wardship_ in modern jurisprudence had adjusted itself with tolerable regularity to the simple principle of protection to the immaturity of youth both bodily and mental. it has its natural termination with years of discretion. but for protection against physical weakness and for protection against intellectual incapacity, the romans looked to two different institutions, distinct both in theory and design. the ideas attendant on both are combined in the modern idea of guardianship. the law of persons contains but one other chapter which can be usefully cited for our present purpose. the legal rules by which systems of nature jurisprudence regulate the connection of _master and slave_, present no very distinct traces of the original condition common to ancient societies. but there are reasons for this exception. there seems to be something in the institution of slavery which has at all times either shocked or perplexed mankind, however little habituated to reflection, and however slightly advanced in the cultivation of its moral instincts. the compunction which ancient communities almost unconsciously experienced appears to have always resulted in the adoption of some imaginary principle upon which a defence, or at least a rationale, of slavery could be plausibly founded. very early in their history the greeks explained the institution as grounded on the intellectual inferiority of certain races and their consequent natural aptitude for the servile condition. the romans, in a spirit equally characteristic, derived it from a supposed agreement between the victor and the vanquished in which the first stipulated for the perpetual services of his foe; and the other gained in consideration the life which he had legitimately forfeited. such theories were not only unsound but plainly unequal to the case for which they affected to account. still they exercised powerful influence in many ways. they satisfied the conscience of the master. they perpetuated and probably increased the debasement of the slave. and they naturally tended to put out of sight the relation in which servitude had originally stood to the rest of the domestic system. the relation, though not clearly exhibited, is casually indicated in many parts of primitive law, and more particularly in the typical system--that of ancient rome. much industry and some learning have been bestowed in the united states of america on the question whether the slave was in the early stages of society a recognised member of the family. there is a sense in which an affirmative answer must certainly be given. it is clear, from the testimony both of ancient law and of many primeval histories, that the slave might under certain conditions be made the heir, or universal successor, of the master, and this significant faculty, as i shall explain in the chapter on succession, implies that the government and representation of the family might, in a particular state of circumstances, devolve on the bondman. it seems, however, to be assumed in the american arguments on the subject that, if we allow slavery to have been a primitive family institution, the acknowledgment is pregnant with an admission of the moral defensibility of negro-servitude at the present moment. what then is meant by saying that the slave was originally included in the family? not that his situation may not have been the fruit of the coarsest motives which can actuate man. the simple wish to use the bodily powers of another person as a means of ministering to one's own ease or pleasure is doubtless the foundation of slavery, and as old as human nature. when we speak of the slave as anciently included in the family, we intend to assert nothing as to the motives of those who brought him into it or kept him there; we merely imply that the tie which bound him to his master was regarded as one of the same general character with that which united every other member of the group to its chieftain. this consequence is, in fact, carried in the general assertion already made that the primitive ideas of mankind were unequal to comprehending any basis of the connection _inter se_ of individuals, apart from the relations of family. the family consisted primarily of those who belonged to it by consanguinity and next of those who had been engrafted on it by adoption; but there was still a third class of persons who were only joined to it by common subjection to its head, and these were the slaves. the born and the adopted subjects of the chief were raised above the slave by the certainty that in the ordinary course of events they would be relieved from bondage and entitled to exercise powers of their own; but that the inferiority of the slave was not such as to place him outside the pale of the family, or such as to degrade him to the footing of inanimate property, is clearly proved, i think, by the many traces which remain of his ancient capacity for inheritance in the last resort. it would, of course, be unsafe in the highest degree to hazard conjectures how far the lot of the slave was mitigated, in the beginnings of society, by having a definite place reserved to him in the empire of the father. it is, perhaps, more probable that the son was practically assimilated to the slave, than that the slave shared any of the tenderness which in later times was shown to the son. but it may be asserted with some confidence of advanced and matured codes that, wherever servitude is sanctioned, the slave has uniformly greater advantages under systems which preserve some memento of his earlier condition than under those which have adopted some other theory of his civil degradation. the point of view from which jurisprudence regards the slave is always of great importance to him. the roman law was arrested in its growing tendency to look upon him more and more as an article of property by the theory of the law of nature; and hence it is that, wherever servitude is sanctioned by institutions which have been deeply affected by roman jurisprudence, the servile condition is never intolerably wretched. there is a great deal of evidence that in those american states which have taken the highly romanised code of louisiana as the basis of their jurisprudence, the lot and prospects of the negro-population are better in many material respects than under institutions founded on the english common law, which, as recently interpreted, has no true place for the slave, and can only therefore regard him as a chattel. we have now examined all parts of the ancient law of persons which fall within the scope of this treatise, and the result of the inquiry is, i trust, to give additional definiteness and precision to our view of the infancy of jurisprudence. the civil laws of states first make their appearance as the themistes of a patriarchal sovereign, and we can now see that these themistes are probably only a developed form of the irresponsible commands which, in a still earlier condition of the race, the head of each isolated household may have addressed to his wives, his children, and his slaves. but, even after the state has been organised, the laws have still an extremely limited application. whether they retain their primitive character as themistes, or whether they advance to the condition of customs or codified texts, they are binding not on individuals, but on families. ancient jurisprudence, if a perhaps deceptive comparison may be employed, may be likened to international law, filling nothing, as it were, excepting the interstices between the great groups which are the atoms of society. in a community so situated, the legislation of assemblies and the jurisdiction of courts reaches only to the heads of families, and to every other individual the rule of conduct is the law of his home, of which his parent is the legislator. but the sphere of civil law, small at first, tends steadily to enlarge itself. the agents of legal change, fictions, equity, and legislation, are brought in turn to bear on the primeval institutions, and at every point of the progress, a greater number of personal rights and a larger amount of property are removed from the domestic forum to the cognisance of the public tribunals. the ordinances of the government obtain gradually the same efficacy in private concerns as in matters of state, and are no longer liable to be overridden by the behests of a despot enthroned by each hearthstone. we have in the annals of roman law a nearly complete history of the crumbling away of an archaic system, and of the formation of new institutions from the recombined materials, institutions some of which descended unimpaired to the modern world, while others, destroyed or corrupted by contact with barbarism in the dark ages, had again to be recovered by mankind. when we leave this jurisprudence at the epoch of its final reconstruction by justinian, few traces of archaism can be discovered in any part of it except in the single article of the extensive powers still reserved to the living parent. everywhere else principles of convenience, or of symmetry, or of simplification--new principles at any rate--have usurped the authority of the jejune considerations which satisfied the conscience of ancient times. everywhere a new morality has displaced the canons of conduct and the reasons of acquiescence which were in unison with the ancient usages, because in fact they were born of them. the movement of the progressive societies has been uniform in one respect. through all its course it has been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place. the individual is steadily substituted for the family, as the unit of which civil laws take account. the advance has been accomplished at varying rates of celerity, and there are societies not absolutely stationary in which the collapse of the ancient organisation can only be perceived by careful study of the phenomena they present. but, whatever its pace, the change has not been subject to reaction or recoil, and apparent retardations will be found to have been occasioned through the absorption of archaic ideas and customs from some entirely foreign source. nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the family. it is contract. starting, as from one terminus of history, from a condition of society in which all the relations of persons are summed up in the relations of family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of individuals. in western europe the progress achieved in this direction has been considerable. thus the status of the slave has disappeared--it has been superseded by the contractual relation of the servant to his master. the status of the female under tutelage, if the tutelage be understood of persons other than her husband, has also ceased to exist; from her coming of age to her marriage all the relations she may form are relations of contract. so too the status of the son under power has no true place in law of modern european societies. if any civil obligation binds together the parent and the child of full age, it is one to which only contract gives its legal validity. the apparent exceptions are exceptions of that stamp which illustrate the rule. the child before years of discretion, the orphan under guardianship, the adjudged lunatic, have all their capacities and incapacities regulated by the law of persons. but why? the reason is differently expressed in the conventional language of different systems, but in substance it is stated to the same effect by all. the great majority of jurists are constant to the principle that the classes of persons just mentioned are subject to extrinsic control on the single ground that they do not possess the faculty of forming a judgment on their own interests; in other words, that they are wanting in the first essential of an engagement by contract. the word status may be usefully employed to construct a formula expressing the law of progress thus indicated, which, whatever be its value, seems to me to be sufficiently ascertained. all the forms of status taken notice of in the law of persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the family. if then we employ status, agreeably with the usage of the best writers, to signify these personal conditions only, and avoid applying the term to such conditions as are the immediate or remote result of agreement, we may say that the movement of the progressive societies has hitherto been a movement _from status to contract_. chapter vi the early history of testamentary succession if an attempt were made to demonstrate in england the superiority of the historical method of investigation to the modes of inquiry concerning jurisprudence which are in fashion among us, no department of law would better serve as an example than testaments or wills. its capabilities it owes to its great length and great continuity. at the beginning of its history we find ourselves in the very infancy of the social state, surrounded by conceptions which it requires some effort of mind to realise in their ancient form; while here, at the other extremity of its line of progress, we are in the midst of legal notions which are nothing more than those same conceptions disguised by the phraseology and by the habits of thought which belong to modern times, and exhibiting therefore a difficulty of another kind, the difficulty of believing that ideas which form part of our everyday mental stock can really stand in need of analysis and examination. the growth of the law of wills between these extreme points can be traced with remarkable distinctness. it was much less interrupted at the epoch of the birth of feudalism, than the history of most other branches of law. it is, indeed, true that, as regards all provinces of jurisprudence, the break caused by the division between ancient and modern history, or in other words by the dissolution of the roman empire, has been very greatly exaggerated. indolence has disinclined many writers to be at the pains of looking for threads of connection entangled and obscured by the confusions of six troubled centuries, while other inquirers, not naturally deficient in patience and industry, have been misled by idle pride in the legal system of their country, and by consequent unwillingness to confess its obligations to the jurisprudence of rome. but these unfavourable influences have had comparatively little effect on the province of testamentary law. the barbarians were confessedly strangers to any such conception as that of a will. the best authorities agree that there is no trace of it in those parts of their written codes which comprise the customs practised by them in their original seats, and in their subsequent settlements on the edge of the roman empire. but soon after they became mixed with the population of the roman provinces they appropriated from the imperial jurisprudence the conception of a will, at first in part, and afterwards in all its integrity. the influence of the church had much to do with this rapid assimilation. the ecclesiastical power had very early succeeded to those privileges of custody and registration of testaments which several of the heathen temples had enjoyed; and even thus early it was almost exclusively to private bequests that the religious foundations owed their temporal possessions. hence it is that the decrees of the earliest provincial councils perpetually contain anathemas against those who deny the sanctity of wills. here, in england, church influence was certainly chief among the causes which by universal acknowledgment have prevented that discontinuity in the history of testamentary law, which is sometimes believed to exist in the history of other provinces of jurisprudence. the jurisdiction over one class of wills was delegated to the ecclesiastical courts, which applied to them, though not always intelligently, the principles of roman jurisprudence; and, though neither the courts of common law nor the court of chancery owned any positive obligation to follow the ecclesiastical tribunals, they could not escape the potent influence of a system of settled rules in course of application by their side. the english law of testamentary succession to personalty has become a modified form of the dispensation under which the inheritances of roman citizens were administered. it is not difficult to point out the extreme difference of the conclusions forced on us by the historical treatment of the subject from those to which we are conducted when, without the help of history, we merely strive to analyse our _primâ facie_ impressions. i suppose there is nobody who, starting from the popular or even the legal conception of a will, would not imagine that certain qualities are necessarily attached to it. he would say, for example, that a will necessarily takes effect _at death only_--that it is _secret_, not known as a matter of course to persons taking interests under its provisions--that it is _revocable_, _i.e._ always capable of being superseded by a new act of testation. yet i shall be able to show that there was a time when none of these characteristics belonged to a will. the testaments from which our wills are directly descended at first took effect immediately on their execution; they were not secret; they were not revocable. few legal agencies are, in fact, the fruit of more complex historical agencies than that by which a man's written intentions control the posthumous disposition of his goods. testaments very slowly and gradually gathered round them the qualities i have mentioned; and they did this from causes and under pressure of events which may be called casual, or which at any rate have no interest for us at present, except so far as they have affected the history of law. at a time when legal theories were more abundant than at present--theories which, it is true, were for the most part gratuitous and premature enough, but which nevertheless rescued jurisprudence from that worse and more ignoble condition, not unknown to ourselves, in which nothing like a generalisation is aspired to, and law is regarded as a mere empirical pursuit--it was the fashion to explain the ready and apparently intuitive perception which we have of certain qualities in a will, by saying that they were natural to it, or, as the phrase would run in full, attached to it by the law of nature. nobody, i imagine, would affect to maintain such a doctrine, when once it was ascertained that all these characteristics had their origin within historical memory; at the same time, vestiges of the theory of which the doctrine is an offshoot, linger in forms of expression which we all of us use and perhaps scarcely know how to dispense with. i may illustrate this by mentioning a position common in the legal literature of the seventeenth century. the jurists of that period very commonly assert that the power of testation itself is of natural law, that it is a right conferred by the law of nature. their teaching, though all persons may not at once see the connection, is in substance followed by those who affirm that the right of dictating or controlling the posthumous disposal of property is a necessary or natural consequence of the proprietary rights themselves. and every student of technical jurisprudence must have come across the same view, clothed in the language of a rather different school, which, in its rationale of this department of law, treats succession _ex testamento_ as the mode of devolution which the property of deceased persons ought primarily to follow, and then proceeds to account for succession _ab intestato_ as the incidental provision of the lawgiver for the discharge of a function which was only left unperformed through the neglect or misfortune of the deceased proprietor. these opinions are only expanded forms of the more compendious doctrine that testamentary disposition is an institution of the law of nature. it is certainly never quite safe to pronounce dogmatically as to the range of association embraced by modern minds, when they reflect on nature and her law; but i believe that most persons, who affirm that the testamentary power is of natural law, may be taken to imply either that, as a matter of fact, it is universal, or that nations are prompted to sanction it by an original instinct and impulse. with respect to the first of these positions, i think that, when explicitly set forth, it can never be seriously contended for in an age which has seen the severe restraints imposed on the testamentary power by the _code napoléon_, and has witnessed the steady multiplication of systems for which the french codes have served as a model. to the second assertion we must object that it is contrary to the best-ascertained facts in the early history of law, and i venture to affirm generally that, in all indigenous societies, a condition of jurisprudence in which testamentary privileges are _not_ allowed, or rather not contemplated, has preceded that later stage of legal development in which the mere will of the proprietor is permitted under more or less of restriction to override the claims of his kindred in blood. the conception of a will or testament cannot be considered by itself. it is a member, and not the first, of a series of conceptions. in itself a will is simply the instrument by which the intention of the testator is declared. it must be clear, i think, that before such an instrument takes its turn for discussion, there are several preliminary points to be examined--as, for example, what is it, what sort of right or interest, which passes from a dead man on his decease? to whom and in what form does it pass? and how came it that the dead were allowed to control the posthumous disposition of their property? thrown into technical language, the dependence of the various conceptions which contribute to the notion of a will is thus expressed. a will or testament is an instrument by which the devolution of an inheritance is prescribed. inheritance is a form of universal succession. a universal succession is a succession to a _universitas juris_, or university of rights and duties. inverting this order we have therefore to inquire what is a _universitas juris_; what is a universal succession; what is the form of universal succession which is called an inheritance? and there are also two further questions, independent to some extent of the points i have mooted, but demanding solution before the subject of wills can be exhausted. these are, how came an inheritance to be controlled in any case by the testator's volition, and what is the nature of the instrument by which it came to be controlled? the first question relates to the _universitas juris_; that is, a university (or bundle) of rights and duties. a _universitas juris_ is a collection of rights and duties united by the single circumstance of their having belonged at one time to some one person. it is, as it were, the legal clothing of some given individual. it is not formed by grouping together _any_ rights and _any_ duties. it can only be constituted by taking all the rights and all the duties of a particular person. the tie which so connects a number of rights of property, rights of way, rights to legacies, duties of specific performance, debts, obligations to compensate wrongs--which so connects all these legal privileges and duties together as to constitute them a _universitas juris_, is the _fact_ of their having attached to some individual capable of exercising them. without this _fact_ there is no university of rights and duties. the expression _universitas juris_ is not classical, but for the notion jurisprudence is exclusively indebted to roman law; nor is it at all difficult to seize. we must endeavour to collect under one conception the whole set of legal relations in which each one of us stands to the rest of the world. these, whatever be their character and composition, make up together a _universitas juris_; and there is but little danger of mistake in forming the notion, if we are only careful to remember that duties enter into it quite as much as rights. our duties may overbalance our rights. a man may owe more than he is worth, and therefore if a money value is set on his collective legal relations he may be what is called insolvent. but for all that the entire group of rights and duties which centres in him is not the less a "juris universitas." we come next to a "universal succession." a universal succession is a succession to a _universitas juris_. it occurs when one man is invested with the legal clothing of another, becoming at the same moment subject to all his liabilities and entitled to all his rights. in order that the universal succession may be true and perfect, the devolution must take place _uno ictu_, as the jurists phrase it. it is of course possible to conceive one man acquiring the whole of the rights and duties of another at different periods, as for example by successive purchases; or he might acquire them in different capacities, part as heir, part as purchaser, part as legatee. but though the group of rights and duties thus made up should in fact amount to the whole legal personality of a particular individual, the acquisition would not be a universal succession. in order that there may be a true universal succession, the transmission must be such as to pass the whole aggregate of rights and duties at the _same_ moment and in virtue of the _same_ legal capacity in the recipient. the notion of a universal succession, like that of a juris universitas, is permanent in jurisprudence, though in the english legal system it is obscured by the great variety of capacities in which rights are acquired, and, above all, by the distinction between the two great provinces of english property, "realty" and "personalty." the succession of an assignee in bankruptcy to the entire property of the bankrupt is, however, a universal succession, though as the assignee only pays debts to the extent of the assets, this is only a modified form of the primary notion. were it common among us for persons to take assignments of _all_ a man's property on condition of paying _all_ his debts, such transfers would exactly resemble the universal successions known to the oldest roman law. when a roman citizen _adrogated_ a son, _i.e._ took a man, not already under patria potestas, as his adoptive child, he succeeded _universally_ to the adoptive child's estate, _i.e._ he took all the property and became liable for all the obligations. several other forms of universal succession appear in the primitive roman law, but infinitely the most important and the most durable of all was that one with which we are more immediately concerned, hæreditas or inheritance. inheritance was a universal succession occurring at a death. the universal successor was hæres or heir. he stepped at once into all the rights and all the duties of the dead man. he was instantly clothed with his entire legal person, and i need scarcely add that the special character of the hæres remained the same, whether he was named by a will or whether he took on an intestacy. the term hæres is no more emphatically used of the intestate than of the testamentary heir, for the manner in which a man became hæres had nothing to do with the legal character he sustained. the dead man's universal successor, however he became so, whether by will or by intestacy, was his heir. but the heir was not necessarily a single person. a group of persons considered in law as a single unit, might succeed as _co-heirs_ to the inheritance. let me now quote the usual roman definition of an inheritance. the reader will be in a position to appreciate the full force of the separate terms. _hæreditas est successio in universum jus quod defunctus habuit_ ("an inheritance is a succession to the entire legal position of a deceased man"). the notion was that, though the physical person of the deceased had perished, his legal personality survived and descended unimpaired on his heir or co-heirs, in whom his identity (so far as the law was concerned) was continued. our own law, in constituting the executor or administrator the representative of the deceased to the extent of his personal assets, may serve as an illustration of the theory from which it emanated, but, although it illustrates, it does not explain it. the view of even the later roman law required a closeness of correspondence between the position of the deceased and of his heir which is no feature of an english representation; and in the primitive jurisprudence everything turned on the continuity of succession. unless provision was made in the will for the instant devolution of the testator's rights and duties on the heir or co-heirs, the testament lost all its effect. in modern testamentary jurisprudence, as in the later roman law, the object of first importance is the execution of the testator's intentions. in the ancient law of rome the subject of corresponding carefulness was the bestowal of the universal succession. one of these rules seems to our eyes a principle dictated by common sense, while the other looks very much like an idle crotchet. yet that without the second of them the first would never have come into being is as certain as any proposition of the kind can be. in order to solve this apparent paradox, and to bring into greater clearness the train of ideas which i have been endeavouring to indicate, i must borrow the results of the inquiry which was attempted in the earlier portion of the preceding chapter. we saw one peculiarity invariably distinguishing the infancy of society. men are regarded and treated, not as individuals, but always as members of a particular group. everybody is first a citizen, and then, as a citizen, he is a member of his order--of an aristocracy or a democracy, of an order of patricians or plebeians; or, in those societies which an unhappy fate has afflicted with a special perversion in their course of development, of a caste. next, he is a member of a gens, house, or clan; and lastly, he is a member of his _family_. this last was the narrowest and most personal relation in which he stood; nor, paradoxical as it may seem, was he ever regarded as _himself_, as a distinct individual. his individuality was swallowed up in his family. i repeat the definition of a primitive society given before. it has for its units, not individuals, but groups of men united by the reality or the fiction of blood-relationship. it is in the peculiarities of an undeveloped society that we seize the first trace of a universal succession. contrasted with the organisation of a modern state, the commonwealths of primitive times may be fairly described as consisting of a number of little despotic governments, each perfectly distinct from the rest, each absolutely controlled by the prerogative of a single monarch. but though the patriarch, for we must not yet call him the pater-familias, had rights thus extensive, it is impossible to doubt that he lay under an equal amplitude of obligations. if he governed the family, it was for its behoof. if he was lord of its possessions, he held them as trustee for his children and kindred. he had no privilege or position distinct from that conferred on him by his relation to the petty commonwealth which he governed. the family, in fact, was a corporation; and he was its representative or, we might almost say, its public officer. he enjoyed rights and stood under duties, but the rights and the duties were, in the contemplation of his fellow-citizens and in the eye of the law, quite as much those of the collective body as his own. let us consider for a moment the effect which would be produced by the death of such a representative. in the eye of the law, in the view of the civil magistrate, the demise of the domestic authority would be a perfectly immaterial event. the person representing the collective body of the family and primarily responsible to municipal jurisdiction would bear a different name; and that would be all. the rights and obligations which attached to the deceased head of the house would attach, without breach of continuity, to his successor; for, in point of fact, they would be the rights and obligations of the family, and the family had the distinctive characteristic of a corporation--that it never died. creditors would have the same remedies against the new chieftain as against the old, for the liability being that of the still existing family would be absolutely unchanged. all rights available to the family would be as available after the demise of the headship as before it--except that the corporation would be obliged--if indeed language so precise and technical can be properly used of these early times--would be obliged to _sue_ under a slightly modified name. the history of jurisprudence must be followed in its whole course, if we are to understand how gradually and tardily society dissolved itself into the component atoms of which it is now constituted--by what insensible gradations the relation of man to man substituted itself for the relation of the individual to his family and of families to each other. the point now to be attended to is that even when the revolution had apparently quite accomplished itself, even when the magistrate had in great measure assumed the place of the pater-familias, and the civil tribunal substituted itself for the domestic forum, nevertheless the whole scheme of rights and duties administered by the judicial authorities remained shaped by the influence of the obsolete privileges and coloured in every part by their reflection. there seems little question that the devolution of the universitas juris, so strenuously insisted upon by the roman law as the first condition of a testamentary or intestate succession, was a feature of the older form of society which men's minds had been unable to dissociate from the new, though with that newer phase it had no true or proper connection. it seems, in truth, that the prolongation of a man's legal existence in his heir, or in a group of co-heirs, is neither more nor less than a characteristic of _the family_ transferred by a fiction to _the individual_. succession in corporations is necessarily universal, and the family was a corporation. corporations never die. the decease of individual members makes no difference to the collective existence of the aggregate body, and does not in any way affect its legal incidents, its faculties or liabilities. now in the idea of a roman universal succession all these qualities of a corporation seem to have been transferred to the individual citizen. his physical death is allowed to exercise no effect on the legal position which he filled, apparently on the principle that that position is to be adjusted as closely as possible to the analogies of a family, which, in its corporate character, was not of course liable to physical extinction. i observe that not a few continental jurists have much difficulty in comprehending the nature of the connection between the conceptions blended in a universal succession, and there is perhaps no topic in the philosophy of jurisprudence on which their speculations, as a general rule, possess so little value. but the student of english law ought to be in no danger of stumbling at the analysis of the idea which we are examining. much light is cast upon it by a fiction in our own system with which all lawyers are familiar. english lawyers classify corporations as corporations aggregate and corporations sole. a corporation aggregate is a true corporation, but a corporation sole is an individual, being a member of a series of individuals, who is invested by a fiction with the qualities of a corporation. i need hardly cite the king or the parson of a parish as instances of corporations sole. the capacity or office is here considered apart from the particular person who from time to time may occupy it, and, this capacity being perpetual, the series of individuals who fill it are clothed with the leading attribute of corporations--perpetuity. now in the older theory of roman law the individual bore to the family precisely the same relation which in the rationale of english jurisprudence a corporation sole bears to a corporation aggregate. the derivation and association of ideas are exactly the same. in fact, if we say to ourselves that for purposes of roman testamentary jurisprudence each individual citizen was a corporation sole, we shall not only realise the full conception of an inheritance, but have constantly at command the clue to the assumption in which it originated. it is an axiom with us that the king never dies, being a corporation sole. his capacities are instantly filled by his successor, and the continuity of dominion is not deemed to have been interrupted. with the romans it seemed an equally simple and natural process, to eliminate the fact of death from the devolution of rights and obligations. the testator lived on in his heir or in the group of his co-heirs. he was in law the same person with them, and if any one in his testamentary dispositions had even constructively violated the principle which united his actual and his posthumous existence, the law rejected the defective instrument, and gave the inheritance to the kindred in blood, whose capacity to fulfil the conditions of heirship was conferred on them by the law itself, and not by any document which by possibility might be erroneously framed. when a roman citizen died intestate or leaving no valid will, his descendants or kindred became his heirs according to a scale which will be presently described. the person or class of persons who succeeded did not simply _represent_ the deceased, but, in conformity with the theory just delineated, they _continued_ his civil life, his legal existence. the same results followed when the order of succession was determined by a will, but the theory of the identity between the dead man and his heirs was certainly much older than any form of testament or phase of testamentary jurisprudence. this indeed is the proper moment for suggesting a doubt which will press on us with greater force the further we plumb the depths of this subject,--whether _wills_ would ever have come into being at all if it had not been for these remarkable ideas connected with universal succession. testamentary law is the application of a principle which may be explained on a variety of philosophical hypotheses as plausible as they are gratuitous; it is interwoven with every part of modern society, and it is defensible on the broadest grounds of general expediency. but the warning can never be too often repeated, that the grand source of mistake in questions of jurisprudence is the impression that those reasons which actuate us at the present moment, in the maintenance of an existing institution, have necessarily anything in common with the sentiment in which the institution originated. it is certain that, in the old roman law of inheritance, the notion of a will or testament is inextricably mixed up, i might almost say confounded, with the theory of a man's posthumous existence in the person of his heir. the conception of a universal succession, firmly as it has taken root in jurisprudence, has not occurred spontaneously to the framers of every body of laws. wherever it is now found, it may be shown to have descended from roman law; and with it have come down a host of legal rules on the subject of testaments and testamentary gifts, which modern practitioners apply without discerning their relation to the parent theory. but, in the pure roman jurisprudence, the principle that a man lives on in his heir--the elimination, if we may so speak, of the fact of death--is too obviously for mistake the centre round which the whole law of testamentary and intestate succession is circling. the unflinching sternness of the roman law in enforcing compliance with the governing theory would in itself suggest that the theory grew out of something in the primitive constitution of roman society; but we may push the proof a good way beyond the presumption. it happens that several technical expressions, dating from the earliest institution of wills at rome, have been accidentally preserved to us. we have in gaius the formula of investiture by which the universal successor was created. we have the ancient name by which the person afterwards called heir was at first designated. we have further the text of the celebrated clause in the twelve tables by which the testamentary power was expressly recognised, and the clauses regulating intestate succession have also been preserved. all these archaic phrases have one salient peculiarity. they indicate that what passed from the testator to the heir was the _family_, that is, the aggregate of rights and duties contained in the patria potestas and growing out of it. the material property is in three instances not mentioned at all; in two others, it is visibly named as an adjunct or appendage of the family. the original will or testament was therefore an instrument, or (for it was probably not at first in writing) a proceeding, by which the devolution of the _family_ was regulated. it was a mode of declaring who was to have the chieftainship, in succession to the testator. when wills are understood to have this for their original object, we see at once how it is that they came to be connected with one of the most curious relics of ancient religion and law, the _sacra_, or family rites. these _sacra_ were the roman form of an institution which shows itself wherever society has not wholly shaken itself free from its primitive clothing. they are the sacrifices and ceremonies by which the brotherhood of the family is commemorated, the pledge and the witness of its perpetuity. whatever be their nature,--whether it be true or not that in all cases they are the worship of some mythical ancestor,--they are everywhere employed to attest the sacredness of the family-relation; and therefore they acquire prominent significance and importance, whenever the continuous existence of the family is endangered by a change in the person of its chief. accordingly we hear most about them in connection with demises of domestic sovereignty. among the hindoos, the right to inherit a dead man's property is exactly co-extensive with the duty of performing his obsequies. if the rites are not properly performed or not performed by the proper person, no relation is considered as established between the deceased and anybody surviving him; the law of succession does not apply, and nobody can inherit the property. every great event in the life of a hindoo seems to be regarded as leading up to and bearing upon those solemnities. if he marries, it is to have children who may celebrate them after his death; if he has no children, he lies under the strongest obligation to adopt them from another family, "with a view," writes the hindoo doctor, "to the funeral cake, the water, and the solemn sacrifice." the sphere preserved to the roman _sacra_ in the time of cicero, was not less in extent. it embraced inheritances and adoptions. no adoption was allowed to take place without due provision for the _sacra_ of the family from which the adoptive son was transferred, and no testament was allowed to distribute an inheritance without a strict apportionment of the expenses of these ceremonies among the different co-heirs. the differences between the roman law at this epoch, when we obtain our last glimpse of the _sacra_, and the existing hindoo system, are most instructive. among the hindoos, the religious element in law has acquired a complete predominance. family sacrifices have become the keystone of all the law of persons and much of the law of things. they have even received a monstrous extension, for it is a plausible opinion that the self-immolation of the widow at her husband's funeral, a practice continued to historical times by the hindoos, and commemorated in the traditions of several indo-european races, was an addition grafted on the primitive _sacra_, under the influence of the impression, which always accompanies the idea of sacrifice, that human blood is the most precious of all oblations. with the romans, on the contrary, the legal obligation and the religious duty have ceased to be blended. the necessity of solemnising the _sacra_ forms no part of the theory of civil law, but they are under the separate jurisdiction of the college of pontiffs. the letters of cicero to atticus, which are full of allusions to them, leave no doubt that they constituted an intolerable burden on inheritances; but the point of development at which law breaks away from religion has been passed, and we are prepared for their entire disappearance from the later jurisprudence. in hindoo law there is no such thing as a true will. the place filled by wills is occupied by adoptions. we can now see the relation of the testamentary power to the faculty of adoption, and the reason why the exercise of either of them could call up a peculiar solicitude for the performance of the _sacra_. both a will and an adoption threaten a distortion of the ordinary course of family descent, but they are obviously contrivances for preventing the descent being wholly interrupted, when there is no succession of kindred to carry it on. of the two expedients adoption, the factitious creation of blood-relationship, is the only one which has suggested itself to the greater part of archaic societies. the hindoos have indeed advanced one point on what was doubtless the antique practice, by allowing the widow to adopt when the father has neglected to do so, and there are in the local customs of bengal some faint traces of the testamentary powers. but to the romans belongs pre-eminently the credit of inventing the will, the institution which, next to the contract, has exercised the greatest influence in transforming human society. we must be careful not to attribute to it in its earliest shape the functions which have attended it in more recent times. it was at first, not a mode of distributing a dead man's goods, but one among several ways of transferring the representation of the household to a new chief. the goods descend no doubt to the heir, but that is only because the government of the family carries with it in its devolution the power of disposing of the common stock. we are very far as yet from that stage in the history of wills in which they become powerful instruments in modifying society through the stimulus they give to the circulation of property and the plasticity they produce in proprietary rights. no such consequences as these appear in fact to have been associated with the testamentary power even by the latest roman lawyers. it will be found that wills were never looked upon in the roman community as a contrivance for parting property and the family, or for creating a variety of miscellaneous interests, but rather as a means of making a better provision for the members of a household than could be secured through the rules of intestate succession. we may suspect indeed that the associations of a roman with the practice of will-making were extremely different from those familiar to us nowadays. the habit of regarding adoption and testation as modes of continuing the family cannot but have had something to do with the singular laxity of roman notions as to the inheritance of sovereignty. it is impossible not to see that the succession of the early roman emperors to each other was considered reasonably regular, and that, in spite of all that had occurred, no absurdity attached to the pretension of such princes as theodosius or justinian to style themselves cæsar and augustus. when the phenomena of primitive societies emerge into light, it seems impossible to dispute a proposition which the jurists of the seventeenth century considered doubtful, that intestate inheritance is a more ancient institution than testamentary succession. as soon as this is settled, a question of much interest suggests itself, how and under what conditions were the directions of a will first allowed to regulate the devolution of authority over the household, and consequently the posthumous distribution of property. the difficulty of deciding the point arises from the rarity of testamentary power in archaic communities. it is doubtful whether a true power of testation was known to any original society except the roman. rudimentary forms of it occur here and there, but most of them are not exempt from the suspicion of a roman origin. the athenian will was, no doubt, indigenous, but then, as will appear presently, it was only an inchoate testament. as to the wills which are sanctioned by the bodies of law which have descended to us as the codes of the barbarian conquerors of imperial rome, they are almost certainly roman. the most penetrating german criticism has recently been directed to these _leges barbarorum_, the great object of investigation being to detach those portions of each system which formed the customs of the tribe in its original home from the adventitious ingredients which were borrowed from the laws of the romans. in the course of this process, one result has invariably disclosed itself, that the ancient nucleus of the code contains no trace of a will. whatever testamentary law exists, has been taken from roman jurisprudence. similarly, the rudimentary testament which (as i am informed) the rabbinical jewish law provides for, has been attributed to contact with the romans. the only form of testament, not belonging to a roman or hellenic society, which can reasonably be supposed indigenous, is that recognised by the usages of the province of bengal; and the testament of bengal is only a rudimentary will. the evidence, however, such as it is, seems to point to the conclusion that testaments are at first only allowed to take effect on failure of the persons entitled to have the inheritance by right of blood genuine or fictitious. thus, when athenian citizens were empowered for the first time by the laws of solon to execute testaments, they were forbidden to disinherit their direct male descendants. so, too, the will of bengal is only permitted to govern the succession so far as it is consistent with certain overriding claims of the family. again, the original institutions of the jews having provided nowhere for the privileges of testatorship, the later rabbinical jurisprudence, which pretends to supply the _casus omissi_ of the mosaic law, allows the power of testation to attach when all the kindred entitled under the mosaic system to succeed have failed or are undiscoverable. the limitations by which the ancient german codes hedge in the testamentary jurisprudence which has been incorporated with them are also significant, and point in the same direction. it is the peculiarity of most of these german laws, in the only shape in which we know them, that, besides the _allod_ or domain of each household, they recognise several subordinate kinds or orders of property, each of which probably represents a separate transfusion of roman principles into the primitive body of teutonic usage. the primitive german or allodial property is strictly reserved to the kindred. not only is it incapable of being disposed of by testament but it is scarcely capable of being alienated by conveyance _inter vivos_. the ancient german law, like the hindoo jurisprudence, makes the male children co-proprietors with their father, and the endowment of the family cannot be parted with except by the consent of all its members. but the other sorts of property, of more modern origin and lower dignity than the allodial possessions, are much more easily alienated than they, and follow much more lenient rules of devolution. women and the descendants of women succeed to them, obviously on the principle that they lie outside the sacred precinct of the agnatic brotherhood. now, it is on these last descriptions of property, and on these only, that the testaments borrowed from rome were at first allowed to operate. these few indications may serve to lend additional plausibility to that which in itself appears to be the most probable explanation of an ascertained fact in the early history of roman wills. we have it stated on abundant authority that testaments, during the primitive period of the roman state, were executed in the comitia calata, that is, in the comitia curiata, or parliament of the patrician burghers of rome, when assembled for private business. this mode of execution has been the source of the assertion, handed down by one generation of civilians to another, that every will at one era of roman history was a solemn legislative enactment. but there is no necessity whatever for resorting to an explanation which has the defect of attributing far too much precision to the proceedings of the ancient assembly. the proper key to the story concerning the execution of wills in the comitia calata must no doubt be sought in the oldest roman law of _intestate_ succession. the canons of primitive roman jurisprudence regulating the inheritance of relations from each other were, so long as they remained unmodified by the edictal law of the prætor, to the following effect:--first, the _sui_ or direct descendants who had never been emancipated succeeded. on the failure of the _sui_, the nearest agnate came into their place, that is, the nearest person or class of the kindred who was or might have been under the same patria potestas with the deceased. the third and last degree came next, in which the inheritance devolved on the _gentiles_, that is on the collective members of the dead man's _gens_ or _house_. the house, i have explained already, was a fictitious extension of the family, consisting of all roman patrician citizens who bore the same name, and who, on the ground of bearing the same name, were supposed to be descended from a common ancestor. now the patrician assembly called the comitia curiata was a legislature in which gentes or houses were exclusively represented. it was a representative assembly of the roman people, constituted on the assumption that the constituent unit of the state was the gens. this being so, the inference seems inevitable, that the cognizance of wills by the comitia was connected with the rights of the gentiles, and was intended to secure them in their privilege of ultimate inheritance. the whole apparent anomaly is removed, if we suppose that a testament could only be made when the testator had no _gentiles_ discoverable, or when they waived their claims, and that every testament was submitted to the general assembly of the roman gentes, in order that those aggrieved by its dispositions might put their veto upon it if they pleased, or by allowing it to pass might be presumed to have renounced their reversion. it is possible that on the eve of the publication of the twelve tables this vetoing power may have been greatly curtailed or only occasionally and capriciously exercised. it is much easier, however, to indicate the meaning and origin of the jurisdiction confided to the comitia calata, than to trace its gradual development or progressive decay. the testament to which the pedigree of all modern wills may be traced is not, however, the testament executed in the calata comitia, but another testament designed to compete with it and destined to supersede it. the historical importance of this early roman will, and the light it casts on much of ancient thought, will excuse me for describing it at some length. when the testamentary power first discloses itself to us in legal history, there are signs that, like almost all the great roman institutions, it was the subject of contention between the patricians and the plebeians. the effect of the political maxim, _plebs gentem non habet_, "a plebeian cannot be a member of a house," was entirely to exclude the plebeians from the comitia curiata. some critics have accordingly supposed that a plebeian could not have his will read or recited to the patrician assembly, and was thus deprived of testamentary privileges altogether. others have been satisfied to point out the hardships of having to submit a proposed will to the unfriendly jurisdiction of an assembly in which the testator was not represented. whatever be the true view, a form of testament came into use, which has all the characteristics of a contrivance intended to evade some distasteful obligation. the will in question was a conveyance _inter vivos_, a complete and irrevocable alienation of the testator's family and substance to the person whom he meant to be his heir. the strict rules of roman law must always have permitted such an alienation, but, when the transaction was intended to have a posthumous effect, there may have been disputes whether it was valid for testamentary purposes without the formal assent of the patrician parliament. if a difference of opinion existed on the point between the two classes of the roman population, it was extinguished, with many other sources of heartburning, by the great decemviral compromise. the text of the twelve tables is still extant which says, "_pater familias uti de pecuniâ tutelâve rei suæ legâssit, ita jus esto_"--a law which can hardly have had any other object than the legalisation of the plebeian will. it is well known to scholars that, centuries after the patrician assembly had ceased to be the legislature of the roman state, it still continued to hold formal sittings for the convenience of private business. consequently, at a period long subsequent to the publication of the decemviral law, there is reason to believe that the comitia calata still assembled for the validation of testaments. its probable functions may be best indicated by saying that it was a court of registration, with the understanding however that the wills exhibited were not _enrolled_, but simply recited to the members, who were supposed to take note of their tenor and to commit them to memory. it is very likely that this form of testament was never reduced to writing at all, but at all events if the will had been originally written, the office of the comitia was certainly confined to hearing it read aloud, the document being retained afterwards in the custody of the testator, or deposited under the safeguard of some religious corporation. this publicity may have been one of the incidents of the testament executed in the comitia calata which brought it into popular disfavour. in the early years of the empire the comitia still held its meetings, but they seem to have lapsed into the merest form, and few wills, or none, were probably presented at the periodical sitting. it is the ancient plebeian will--the alternative of the testament just described--which in its remote effects has deeply modified the civilisation of the modern world. it acquired at rome all the popularity which the testament submitted to the calata comitia appears to have lost. the key to all its characteristics lies in its descent from the _mancipium_, or ancient roman conveyance, a proceeding to which we may unhesitatingly assign the parentage of two great institutions without which modern society can scarcely be supposed capable of holding together, the contract and the will. the _mancipium_, or as the word would exhibit itself in later latinity, the mancipation, carries us back by its incidents to the infancy of civil society. as it sprang from times long anterior, if not to the invention, at all events to the popularisation, of the art of writing, gestures, symbolical acts, and solemn phrases take the place of documentary forms, and a lengthy and intricate ceremonial is intended to call the attention of the parties to the importance of the transaction, and to impress it on the memory of the witnesses. the imperfection too of oral, as compared with written, testimony necessitates the multiplication of the witnesses and assistants beyond what in later times would be reasonable or intelligible limits. the roman mancipation required the presence first of all of the parties, the vendor and vendee, or we should perhaps rather say, if we are to use modern legal language, the grantor and grantee. there were also no less than _five_ witnesses; and an anomalous personage, the libripens, who brought with him a pair of scales to weigh the uncoined copper money of ancient rome. the testament we are considering--the testament _per æs et libram_, "with the copper and the scales," as it long continued to be technically called--was an ordinary mancipation with no change in the form and hardly any in words. the testator was the grantor; the five witnesses and the libripens were present; and the place of grantee was taken by a person known technically as the _familiæ emptor_, the purchaser of the family. the ordinary ceremony of a mancipation was then proceeded with. certain formal gestures were made and sentences pronounced. the _emptor familiæ_ simulated the payment of a price by striking the scales with a piece of money, and finally the testator ratified what had been done in a set form of words called the "nuncupatio" or publication of the transaction, a phrase which, i need scarcely remind the lawyer, has had a long history in testamentary jurisprudence. it is necessary to attend particularly to the character of the person called _familiæ emptor_. there is no doubt that at first he was the heir himself. the testator conveyed to him outright his whole "familia," that is, all the rights he enjoyed over and through the family; his property, his slaves, and all his ancestral privileges, together, on the other hand, with all his duties and obligations. with these data before us, we are able to note several remarkable points in which the mancipatory testament, as it may be called, differed in its primitive form from a modern will. as it amounted to a conveyance _out-and-out_ of the testator's estate, it was not _revocable_. there could be no new exercise of a power which had been exhausted. again, it was not secret. the familiæ emptor, being himself the heir, knew exactly what his rights were, and was aware that he was irreversibly entitled to the inheritance; a knowledge which the violences inseparable from the best-ordered ancient society rendered extremely dangerous. but perhaps the most surprising consequence of this relation of testaments to conveyances was the immediate vesting of the inheritance in the heir. this has seemed so incredible to not a few civilians, that they have spoken of the testator's estate as vesting conditionally on the testator's death or as granted to him from a time uncertain, _i.e._ the death of the grantor. but down to the latest period of roman jurisprudence there was a certain class of transactions which never admitted of being directly modified by a condition, or of being limited to or from a point of time. in technical language they did not admit _conditio_ or _dies_. mancipation was one of them, and therefore, strange as it may seem, we are forced to conclude that the primitive roman will took effect at once, even though the testator survived his act of testation. it is indeed likely that roman citizens originally made their wills only in the article of death, and that a provision for the continuance of the family effected by a man in the flower of life would take the form rather of an adoption than of a will. still we must believe that, if the testator did recover, he could only continue to govern his household by the sufferance of his heir. two or three remarks should be made before i explain how these inconveniences were remedied, and how testaments came to be invested with the characteristics now universally associated with them. the testament was not necessarily written: at first, it seems to have been invariably oral, and, even in later times, the instrument declaratory of the bequests was only incidentally connected with the will and formed no essential part of it. it bore in fact exactly the same relation to the testament, which the deed leading the uses bore to the fines and recoveries of old english law, or which the charter of feoffment bore to the feoffment itself. previously, indeed, to the twelve tables, no writing would have been of the slightest use, for the testator had no power of giving legacies, and the only persons who could be advantaged by a will were the heir or co-heirs. but the extreme generality of the clause in the twelve tables soon produced the doctrine that the heir must take the inheritance burdened by any directions which the testator might give him, or in other words, take it subject to legacies. written testamentary instruments assumed thereupon a new value, as a security against the fraudulent refusal of the heir to satisfy the legatees; but to the last it was at the testator's pleasure to rely exclusively on the testimony of the witnesses, and to declare by word of mouth the legacies which the _familiæ emptor_ was commissioned to pay. the terms of the expression _emptor familiæ_ demand notice. "emptor" indicates that the will was literally a sale, and the word "familiæ," when compared with the phraseology in the testamentary clause in the twelve tables, leads us to some instructive conclusions. "familia," in classical latinity, means always a man's slaves. here, however, and generally in the language of ancient roman law, it includes all persons under his potestas, and the testator's material property or substance is understood to pass as an adjunct or appendage of his household. turning to the law of the twelve tables, it will be seen that it speaks of _tutela rei suæ_, "the guardianship of his substance," a form of expression which is the exact reverse of the phrase just examined. there does not therefore appear to be any mode of escaping from the conclusion, that, even at an era so comparatively recent as that of the decemviral compromise, terms denoting "household" and "property" were blended in the current phraseology. if a man's household had been spoken of as his property we might have explained the expression as pointing to the extent of the patria potestas, but, as the interchange is reciprocal, we must allow that the form of speech carries us back to that primeval period in which property is owned by the family, and the family is governed by the citizen, so that the members of the community do not own their property _and_ their family, but rather own their property _through_ their family. at an epoch not easy to settle with precision, the roman prætors fell into the habit of acting upon testaments solemnised in closer conformity with the spirit than the letter of the law. casual dispensations became insensibly the established practice, till at length a wholly new form of will was matured and regularly engrafted on the edictal jurisprudence. the new or _prætorian_ testament derived the whole of its impregnability from the _jus honorarium_ or equity of rome. the prætor of some particular year must have inserted a clause in his inaugural proclamation declaratory of his intention to sustain all testaments which should have been executed with such and such solemnities; and, the reform having been found advantageous, the article relating to it must have been again introduced by the prætor's successor, and repeated by the next in office, till at length it formed a recognised portion of that body of jurisprudence which from these successive incorporations was styled the perpetual or continuous edict. on examining the conditions of a valid prætorian will they will be plainly seen to have been determined by the requirements of the mancipatory testament, the innovating prætor having obviously prescribed to himself the retention of the old formalities just so far as they were warrants of genuineness or securities against fraud. at the execution of the mancipatory testament seven persons had been present besides the testator. seven witnesses were accordingly essential to the prætorian will: two of them corresponding to the _libripens_ and _familiæ emptor_, who were now stripped of their symbolical character, and were merely present for the purpose of supplying their testimony. no emblematic ceremony was gone through; the will was merely recited; but then it is probable (though not absolutely certain) that a written instrument was necessary to perpetuate the evidence of the testator's dispositions. at all events, whenever a writing was read or exhibited as a person's last will, we know certainly that the prætorian court would not sustain it by special intervention, unless each of the seven witnesses had severally affixed his seal to the outside. this is the first appearance of _sealing_ in the history of jurisprudence, considered as a mode of authentication. it is to be observed that the seals of roman wills, and other documents of importance, did not simply serve as the index of the presence or assent of the signatory, but were literally fastenings which had to be broken before the writing could be inspected. the edictal law would therefore enforce the dispositions of a testator, when, instead of being symbolised through the forms of mancipation, they were simply evidenced by the seals of seven witnesses. but it may be laid down as a general proposition, that the principal qualities of roman property were incommunicable except through processes which were supposed to be coeval with the origin of the civil law. the prætor therefore could not confer an _inheritance_ on anybody. he could not place the heir or co-heirs in that very relation in which the testator had himself stood to his own rights and obligations. all he could do was to confer on the person designated as heir the practical enjoyment of the property bequeathed, and to give the force of legal acquittances to his payments of the testator's debts. when he exerted his powers to these ends, the prætor was technically said to communicate the _bonorum possessio_. the heir specially inducted under these circumstances, or _bonorum possessor_, had every proprietary privilege of the heir by the civil law. he took the profits and he could alienate, but then, for all his remedies for redress against wrong, he must go, as we should phrase it, not to the common law, but to the equity side of the prætorian court. no great chance of error would be incurred by describing him as having an _equitable_ estate in the inheritance; but then, to secure ourselves against being deluded by the analogy, we must always recollect that in one year the _bonorum possessio_ was operated upon a principle of roman law known as usucapion, and the possessor became quiritarian owner of all the property comprised in the inheritance. we know too little of the older law of civil process to be able to strike the balance of advantage and disadvantage between the different classes of remedies supplied by the prætorian tribunal. it is certain, however, that, in spite of its many defects, the mancipatory testament by which the _universitas juris_ devolved at once and unimpaired was never entirely superseded by the new will; and at a period less bigoted to antiquarian forms, and perhaps not quite alive to their significance, all the ingenuity of the jurisconsults seems to have been expended on the improvement of the more venerable instrument. at the era of gaius, which is that of the antonine cæsars, the great blemishes of the mancipatory will had been removed. originally, as we have seen, the essential character of the formalities had required that the heir himself should be the purchaser of the family, and the consequence was that he not only instantly acquired a vested interest in the testator's property, but was formally made aware of his rights. but the age of gaius permitted some unconcerned person to officiate as purchaser of the family. the heir, therefore, was not necessarily informed of the succession to which he was destined; and wills thenceforward acquired the property of _secrecy_. the substitution of a stranger for the actual heir in the functions of "familiæ emptor" had other ulterior consequences. as soon as it was legalised, a roman testament came to consist of two parts or stages--a conveyance, which was a pure form, and a nuncupatio, or publication. in this latter passage of the proceeding, the testator either orally declared to the assistants the wishes which were to be executed after his death, or produced a written document in which his wishes were embodied. it was not probably till attention had been quite drawn off from the imaginary conveyance, and concentrated on the nuncupation as the essential part of the transaction, that wills were allowed to become _revocable_. i have thus carried the pedigree of wills some way down in legal history. the root of it is the old testament "with the copper and the scales," founded on a mancipation or conveyance. this ancient will has, however, manifold defects, which are remedied, though only indirectly, by the prætorian law. meantime the ingenuity of the jurisconsults effects, in the common-law will or mancipatory testament, the very improvements which the prætor may have concurrently carried out in equity. these last ameliorations depend, however, on mere legal dexterity, and we see accordingly that the testamentary law of the day of gaius or ulpian is only transitional. what changes next ensued we know not; but at length, just before the reconstruction of the jurisprudence by justinian, we find the subjects of the eastern roman empire employing a form of will of which the pedigree is traceable to the prætorian testament on one side, and to the testament "with the copper and the scales" on the other. like the testament of the prætor, it required no mancipation, and was invalid unless sealed by seven witnesses. like the mancipatory will, it passed the inheritance and not merely a _bonorum possessio_. several, however, of its most important features were annexed by positive enactments, and it is out of regard to this threefold derivation from the prætorian edict, from the civil law, and from the imperial constitutions, that justinian speaks of the law of wills in his own day as _jus tripertitum_. the new testament thus described is the one generally known as the roman will. but it was the will of the eastern empire only; and the researches of savigny have shown that in western europe the old mancipatory testament, with all its apparatus of conveyance, copper, and scales, continued to be the form in use far down in the middle ages. chapter vii ancient and modern ideas respecting wills and successions although there is much in the modern european law of wills which is intimately connected with the oldest rules of testamentary disposition practised among men, there are nevertheless some important differences between ancient and modern ideas on the subject of wills and successions. some of the points of difference i shall endeavour to illustrate in this chapter. at a period, removed several centuries from the era of the twelve tables, we find a variety of rules engrafted on the roman civil law with the view of limiting the disinherison of children; we have the jurisdiction of the prætor very actively exerted in the same interest; and we are also presented with a new remedy, very anomalous in character and of uncertain origin, called the querela inofficiosi testamenti, "the plaint of an unduteous will," directed to the reinstatement of the issue in inheritances from which they had been unjustifiably excluded by a father's testament. comparing this condition of the law with the text of the twelve tables which concedes in terms the utmost liberty of testation, several writers have been tempted to interweave a good deal of dramatic incident into their history of the law testamentary. they tell us of the boundless license of disinherison in which the heads of families instantly began to indulge, of the scandal and injury to public morals which the new practices engendered, and of the applause of all good men which hailed the courage of the prætor in arresting the progress of paternal depravity. this story, which is not without some foundation for the principal fact it relates, is often so told as to disclose very serious misconceptions of the principles of legal history. the law of the twelve tables is to be explained by the character of the age in which it was enacted. it does not license a tendency which a later era thought itself bound to counteract, but it proceeds on the assumption that no such tendency exists, or, perhaps we should say, in ignorance of the possibility of its existence. there is no likelihood that roman citizens began immediately to avail themselves freely of the power to disinherit. it is against all reason and sound appreciation of history to suppose that the yoke of family bondage, still patiently submitted to, as we know, where its pressure galled most cruelly, would be cast off in the very particular in which its incidence in our own day is not otherwise than welcome. the law of the twelve tables permitted the execution of testaments in the only case in which it was thought possible that they could be executed, viz. on failure of children and proximate kindred. it did not forbid the disinherison of direct descendants, inasmuch as it did not legislate against a contingency which no roman lawgiver of that era could have contemplated. no doubt, as the offices of family affection progressively lost the aspect of primary personal duties, the disinherison of children was occasionally attempted. but the interference of the prætor, so far from being called for by the universality of the abuse, was doubtless first prompted by the fact that such instances of unnatural caprice were few and exceptional, and at conflict with the current morality. the indications furnished by this part of roman testamentary law are of a very different kind. it is remarkable that a will never seems to have been regarded by the romans as a means of _disinheriting_ a family, or of effecting the unequal distribution of a patrimony. the rules of law preventing its being turned to such a purpose, increase in number and stringency as the jurisprudence unfolds itself; and these rules correspond doubtless with the abiding sentiment of roman society, as distinguished from occasional variations of feeling in individuals. it would rather seem as if the testamentary power were chiefly valued for the assistance it gave in _making provision_ for a family, and in dividing the inheritance more evenly and fairly than the law of intestate succession would have divided it. if this be the true reading of the general sentiment on the point, it explains to some extent the singular horror of intestacy which always characterised the roman. no evil seems to have been considered a heavier visitation than the forfeiture of testamentary privileges; no curse appears to have been bitterer than that which imprecated on an enemy that he might die without a will. the feeling has no counterpart, or none that is easily recognisable, in the forms of opinion which exist at the present day. all men at all times will doubtless prefer chalking out the destination of their substance to having that office performed for them by the law; but the roman passion for testacy is distinguished from the mere desire to indulge caprice by its intensity; and it has of course nothing whatever in common with that pride of family, exclusively the creation of feudalism, which accumulates one description of property in the hands of a single representative. it is probable, _à priori_, that it was something in the rules of intestate succession which caused this vehement preference for the distribution of property under a testament over its distribution by law. the difficulty, however, is, that on glancing at the roman law of intestate succession, in the form which it wore for many centuries before justinian shaped it into that scheme of inheritance which has been almost universally adopted by modern lawgivers, it by no means strikes one as remarkably unreasonable or inequitable. on the contrary, the distribution it prescribes is so fair and rational, and differs so little from that with which modern society has been generally contented, that no reason suggests itself why it should have been regarded with extraordinary distaste, especially under a jurisprudence which pared down to a narrow compass the testamentary privileges of persons who had children to provide for. we should rather have expected that, as in france at this moment, the heads of families would generally save themselves the trouble of executing a will, and allow the law to do as it pleased with their assets. i think, however, if we look a little closely at the pre-justinianean scale of intestate succession, we shall discover the key to the mystery. the texture of the law consists of two distinct parts. one department of rules comes from the jus civile, the common-law of rome; the other from the edict of the prætor. the civil law, as i have already stated for another purpose, calls to the inheritance only three orders of successors in their turn; the unemancipated children, the nearest class of agnatic kindred, and the gentiles. between these three orders, the prætor interpolates various classes of relatives, of whom the civil law took no notice whatever. ultimately, the combination of the edict and of the civil law forms a table of succession not materially different from that which has descended to the generality of modern codes. the point for recollection is that there must anciently have been a time at which the rules of the civil law determined the scheme of intestate succession exclusively, and at which the arrangements of the edict were non-existent, or not consistently carried out. we cannot doubt that, in its infancy, the prætorian jurisprudence had to contend with formidable obstructions, and it is more than probable that, long after popular sentiment and legal opinion had acquiesced in it, the modifications which it periodically introduced were governed by no certain principles, and fluctuated with the varying bias of successive magistrates. the rules of intestate succession, which the romans must at this period have practised, account, i think--and more than account--for that vehement distaste for an intestacy to which roman society during so many ages remained constant. the order of succession was this: on the death of a citizen, having no will or no valid will, his unemancipated children became his heirs. his _emancipated_ sons had no share in the inheritance. if he left no direct descendants living at his death, the nearest grade of the agnatic kindred succeeded, but no part of the inheritance was given to any relative united (however closely) with the dead man through female descents. all the other branches of the family were excluded, and the inheritance escheated to the _gentiles_, or entire body of roman citizens bearing the same name with the deceased. so that on failing to execute an operative testament, a roman of the era under examination left his emancipated children absolutely without provision, while, on the assumption that he died childless, there was imminent risk that his possessions would escape from the family altogether, and devolve on a number of persons with whom he was merely connected by the sacerdotal fiction that assumed all members of the same _gens_ to be descended from a common ancestor. the prospect of such an issue is in itself a nearly sufficient explanation of the popular sentiment; but, in point of fact, we shall only half understand it, if we forget that the state of things i have been describing is likely to have existed at the very moment when roman society was in the first stage of its transition from its primitive organisation in detached families. the empire of the father had indeed received one of the earliest blows directed at it through the recognition of emancipation as a legitimate usage, but the law, still considering the patria potestas to be the root of family connection, persevered in looking on the emancipated children as strangers to the rights of kinship and aliens from the blood. we cannot, however, for a moment suppose that the limitations of the family imposed by legal pedantry had their counterpart in the natural affection of parents. family attachments must still have retained that nearly inconceivable sanctity and intensity which belonged to them under the patriarchal system; and, so little are they likely to have been extinguished by the act of emancipation, that the probabilities are altogether the other way. it may be unhesitatingly taken for granted that enfranchisement from the father's power was a demonstration, rather than a severance, of affection--a mark of grace and favour accorded to the best-beloved and most esteemed of the children. if sons thus honoured above the rest were absolutely deprived of their heritage by an intestacy, the reluctance to incur it requires no farther explanation. we might have assumed _à priori_ that the passion for testacy was generated by some moral injustice entailed by the rules of intestate succession; and here we find them at variance with the very instinct by which early society was cemented together. it is possible to put all that has been urged in a very succinct form. every dominant sentiment of the primitive romans was entwined with the relations of the family. but what was the family? the law defined it one way--natural affection another. in the conflict between the two, the feeling we would analyse grew up, taking the form of an enthusiasm for the institution by which the dictates of affection were permitted to determine the fortunes of its objects. i regard, therefore, the roman horror of intestacy as a monument of a very early conflict between ancient law and slowly changing ancient sentiment on the subject of the family. some passages in the roman statute-law, and one statute in particular which limited the capacity for inheritance possessed by women, must have contributed to keep alive the feeling; and it is the general belief that the system of creating fidei-commissa, or bequests in trust, was devised to evade the disabilities imposed by those statutes. but the feeling itself, in its remarkable intensity, seems to point back to some deeper antagonism between law and opinion; nor is it at all wonderful that the improvements of jurisprudence by the prætor should not have extinguished it. everybody conversant with the philosophy of opinion is aware that a sentiment by no means dies out, of necessity, with the passing away of the circumstances which produced it. it may long survive them; nay, it may afterwards attain to a pitch and climax of intensity which it never attained during their actual continuance. the view of a will which regards it as conferring the power of diverting property from the family, or of distributing it in such uneven proportions as the fancy or good sense of the testator may dictate, is not older than that later portion of the middle ages in which feudalism had completely consolidated itself. when modern jurisprudence first shows itself in the rough, wills are rarely allowed to dispose with absolute freedom of a dead man's assets. wherever at this period the descent of property was regulated by will--and over the greater part of europe moveable or personal property was the subject of testamentary disposition--the exercise of the testamentary power was seldom allowed to interfere with the right of the widow to a definite share, and of the children to certain fixed proportions, of the devolving inheritance. the shares of the children, as their amount shows, were determined by the authority of roman law. the provision for the widow was attributable to the exertions of the church, which never relaxed its solicitude for the interest of wives surviving their husbands--winning, perhaps, one of the most arduous of its triumphs when, after exacting for two or three centuries an express promise from the husband at marriage to endow his wife, it at length succeeded in engrafting the principle of dower on the customary law of all western europe. curiously enough, the dower of lands proved a more stable institution than the analogous and more ancient reservation of certain shares of the personal property to the widow and children. a few local customs in france maintained the right down to the revolution, and there are traces of similar usages in england; but on the whole the doctrine prevailed that moveables might be freely disposed of by will, and, even when the claims of the widow continued to be respected, the privileges of the children were obliterated from jurisprudence. we need not hesitate to attribute the change to the influence of primogeniture. as the feudal law of land practically disinherited all the children in favour of one, the equal distribution even of those sorts of property which might have been equally divided ceased to be viewed as a duty. testaments were the principal instruments employed in producing inequality, and in this condition of things originated the shade of difference which shows itself between the ancient and the modern conception of a will. but, though the liberty of bequest, enjoyed through testaments, was thus an accidental fruit of feudalism, there is no broader distinction than that which exists between a system of free testamentary disposition and a system, like that of the feudal land-law, under which property descends compulsorily in prescribed lines of devolution. this truth appears to have been lost sight of by the authors of the french codes. in the social fabric which they determined to destroy, they saw primogeniture resting chiefly on family settlements, but they also perceived that testaments were frequently employed to give the eldest son precisely the same preference which was reserved to him under the strictest of entails. in order, therefore, to make sure of their work, they not only rendered it impossible to prefer the eldest son to the rest in marriage-arrangements, but they almost expelled testamentary succession from the law, lest it should be used to defeat their fundamental principle of an equal distribution of property among children at the parent's death. the result is that they have established a system of small perpetual entails, which is infinitely nearer akin to the system of feudal europe than would be a perfect liberty of bequest. the land-law of england, "the herculaneum of feudalism," is certainly much more closely allied to the land-law of the middle ages than that of any continental country, and wills with us are frequently used to aid or imitate that preference of the eldest son and his line which is a nearly universal feature in marriage settlements of real property. but nevertheless feeling and opinion in this country have been profoundly affected by the practice of free testamentary disposition; and it appears to me that the state of sentiment in a great part of french society, on the subject of the conservation of property in families, is much liker that which prevailed through europe two or three centuries ago than are the current opinions of englishmen. the mention of primogeniture introduces one of the most difficult problems of historical jurisprudence. though i have not paused to explain my expressions, it may have been noticed that i have frequently spoken of a number of "co-heirs" as placed by the roman law of succession on the same footing with a single heir. in point of fact, we know of no period of roman jurisprudence at which the place of the heir, or universal successor, might not have been taken by a group of co-heirs. this group succeeded as a single unit, and the assets were afterwards divided among them in a separate legal proceeding. when the succession was _ab intestato_, and the group consisted of the children of the deceased, they each took an equal share of the property; nor, though males had at one time some advantages over females, is there the faintest trace of primogeniture. the mode of distribution is the same throughout archaic jurisprudence. it certainly seems that, when civil society begins and families cease to hold together through a series of generations, the idea which spontaneously suggests itself is to divide the domain equally among the members of each successive generation, and to reserve no privilege to the eldest son or stock. some peculiarly significant hints as to the close relation of this phenomenon to primitive thought are furnished by systems yet more archaic than the roman. among the hindoos, the instant a son is born, he acquires a vested right in his father's property, which cannot be sold without recognition of his joint ownership. on the son's attaining full age, he can sometimes compel a partition of the estate even against the consent of the parent; and, should the parent acquiesce, one son can always have a partition even against the will of the others. on such partition taking place, the father has no advantage over his children, except that he has two of the shares instead of one. the ancient law of the german tribes was exceedingly similar. the _allod_ or domain of the family was the joint-property of the father and his sons. it does not, however, appear to have been habitually divided even at the death of the parent, and in the same way the possessions of a hindoo, however divisible theoretically, are so rarely distributed in fact, that many generations constantly succeed each other without a partition taking place, and thus the family in india has a perpetual tendency to expand into the village community, under conditions which i shall hereafter attempt to elucidate. all this points very clearly to the absolutely equal division of assets among the male children at death as the practice most usual with society at the period when family-dependency is in the first stages of disintegration. here then emerges the historical difficulty of primogeniture. the more clearly we perceive that, when the feudal institutions were in process of formation, there was no source in the world whence they could derive their elements but the roman law of the provincials on the one hand and the archaic customs of the barbarians on the other, the more are we perplexed at first sight by our knowledge that neither roman nor barbarian was accustomed to give any preference to the eldest son or his line in the succession to property. primogeniture did not belong to the customs which the barbarians practised on their first establishment within the roman empire. it is known to have had its origin in the _benefices_ or beneficiary gifts of the invading chieftains. these benefices, which were occasionally conferred by the earlier immigrant kings, but were distributed on a great scale by charlemagne, were grants of roman provincial land to be holden by the beneficiary on condition of military service. the _allodial_ proprietors do not seem to have followed their sovereign on distant or difficult enterprises, and all the grander expeditions of the frankish chiefs and of charlemagne were accomplished with forces composed of soldiers either personally dependent on the royal house or compelled to serve it by the tenure of their land. the benefices, however, were not at first in any sense hereditary. they were held at the pleasure of the grantor, or at most for the life of the grantee; but still, from the very outset, no effort seems to have been spared by the beneficiaries to enlarge the tenure, and to continue their lands in their family after death. through the feebleness of charlemagne's successors these attempts were universally successful, and the benefice gradually transformed itself into the hereditary fief. but, though the fiefs were hereditary, they did not necessarily descend to the eldest son. the rules of succession which they followed were entirely determined by the terms agreed upon between the grantor and the beneficiary, or imposed by one of them on the weakness of the other. the original tenures were therefore extremely various; not indeed so capriciously various as is sometimes asserted, for all which have hitherto been described present some combination of the modes of succession familiar to romans and to barbarians, but still exceedingly miscellaneous. in some of them, the eldest son and his stock undoubtedly succeeded to the fief before the others, but such successions, so far from being universal, do not even appear to have been general. precisely the same phenomena recur during that more recent transmutation of european society which entirely substituted the feudal form of property for the domainial (or roman) and the allodial (or german). the allods were wholly absorbed by the fiefs. the greater allodial proprietors transformed themselves into feudal lords by conditional alienations of portions of their land to dependants; the smaller sought an escape from the oppressions of that terrible time by surrendering their property to some powerful chieftain, and receiving it back at his hands on condition of service in his wars. meantime, that vast mass of the population of western europe whose condition was servile or semi-servile--the roman and german personal slaves, the roman _coloni_ and the german _lidi_--were concurrently absorbed by the feudal organisation, a few of them assuming a menial relation to the lords, but the greater part receiving land on terms which in those centuries were considered degrading. the tenures created during this era of universal infeudation were as various as the conditions which the tenants made with their new chiefs or were forced to accept from them. as in the case of the benefices, the succession to some, but by no means to all, of the estates followed the rule of primogeniture. no sooner, however, has the feudal system prevailed throughout the west, than it becomes evident that primogeniture has some great advantage over every other mode of succession. it spread over europe with remarkable rapidity, the principal instrument of diffusion being family settlements, the pactes de famille of france and haus-gesetze of germany, which universally stipulated that lands held by knightly service should descend to the eldest son. ultimately the law resigned itself to follow inveterate practice, and we find that in all the bodies of customary law, which were gradually built up, the eldest son and stock are preferred in the succession to estates of which the tenure is free and military. as to lands held by servile tenures (and originally all tenures were servile which bound the tenant to pay money or bestow manual labour), the system of succession prescribed by custom differed greatly in different countries and different provinces. the more general rule was that such lands were divided equally at death among all the children, but still in some instances the eldest son was preferred, in some the youngest. but primogeniture usually governed the inheritance of that class of estates, in some respects the most important of all, which were held by tenures that, like the english socage, were of later origin than the rest, and were neither altogether free nor altogether servile. the diffusion of primogeniture is usually accounted for by assigning what are called feudal reasons for it. it is asserted that the feudal superior had a better security for the military service he required when the fief descended to a single person, instead of being distributed among a number on the decease of the last holder. without denying that this consideration may partially explain the favour gradually acquired by primogeniture, i must point out that primogeniture became a custom of europe much more through its popularity with the tenants than through any advantage it conferred on the lords. for its origin, moreover, the reason given does not account at all. nothing in law springs entirely from a sense of convenience. there are always certain ideas existing antecedently on which the sense of convenience works, and of which it can do no more than form some new combination; and to find these ideas in the present case is exactly the problem. a valuable hint is furnished to us from a quarter fruitful of such indications. although in india the possessions of a parent are divisible at his death, and may be divisible during his life, among all his male children in equal shares, and though this principle of the equal distribution of _property_ extends to every part of the hindoo institutions, yet wherever _public office_ or _political power_ devolves at the decease of the last incumbent, the succession is nearly universally according to the rules of primogeniture. sovereignties descend therefore to the eldest son, and where the affairs of the village community, the corporate unit of hindoo society, are confided to a single manager, it is generally the eldest son who takes up the administration at his parent's death. all offices, indeed, in india, tend to become hereditary, and, when their nature permits it, to vest in the eldest member of the oldest stock. comparing these indian successions with some of the ruder social organisations which have survived in europe almost to our own day, the conclusion suggests itself that, when patriarchal power is not only _domestic_ but _political_, it is not distributed among all the issue at the parent's death, but is the birthright of the eldest son. the chieftainship of a highland clan, for example, followed the order of primogeniture. there seems, in truth, to be a form of family-dependency still more archaic than any of those which we know from the primitive records of organised civil societies. the agnatic union of the kindred in ancient roman law, and a multitude of similar indications, point to a period at which all the ramifying branches of the family tree held together in one organic whole; and it is no presumptuous conjecture, that, when the corporation thus formed by the kindred was in itself an independent society, it was governed by the eldest male of the oldest line. it is true that we have no actual knowledge of any such society. even in the most elementary communities, family-organisations, as we know them, are at most _imperia in imperio_. but the position of some of them, of the celtic clans in particular, was sufficiently near independence within historical times to force on us the conviction that they were once separate _imperia_, and that primogeniture regulated the succession to the chieftainship. it is, however, necessary to be on our guard against modern associations with the term of law. we are speaking of a family-connection still closer and more stringent than any with which we are made acquainted by hindoo society or ancient roman law. if the roman paterfamilias was visibly steward of the family possessions, if the hindoo father is only joint-sharer with his sons, still more emphatically must the true patriarchal chieftain be merely the administrator of a common fund. the examples of succession by primogeniture which were found among the benefices may, therefore, have been imitated from a system of family-government known to the invading races, though not in general use. some ruder tribes may have still practised it, or, what is still more probable, society may have been so slightly removed from its more archaic condition that the minds of some men spontaneously recurred to it, when they were called upon to settle the rules of inheritance for a new form of property. but there is still the question, why did primogeniture gradually supersede every other principle of succession? the answer, i think, is, that european society decidedly retrograded during the dissolution of the carlovingian empire. it sank a point or two back even from the miserably low degree which it had marked during the early barbarian monarchies. the great characteristic of the period was the feebleness, or rather the abeyance, of kingly and therefore of civil authority; and hence it seems as if, civil society no longer cohering, men universally flung themselves back on a social organisation older than the beginnings of civil communities. the lord with his vassals, during the ninth and tenth centuries, may be considered as a patriarchal household, recruited, not as in the primitive times by adoption, but by infeudation; and to such a confederacy, succession by primogeniture was a source of strength and durability. so long as the land was kept together on which the entire organisation rested, it was powerful for defence and attack; to divide the land was to divide the little society, and voluntarily to invite aggression in an era of universal violence. we may be perfectly certain that into this preference for primogeniture there entered no idea of disinheriting the bulk of the children in favour of one. everybody would have suffered by the division of the fief. everybody was a gainer by its consolidation. the family grew stronger by the concentration of power in the same hands; nor is it likely that the lord who was invested with the inheritance had any advantage over his brethren and kinsfolk in occupations, interests, or indulgences. it would be a singular anachronism to estimate the privileges succeeded to by the heir of a fief, by the situation in which the eldest son is placed under an english strict settlement. i have said that i regard the early feudal confederacies as descended from an archaic form of the family, and as wearing a strong resemblance to it. but then in the ancient world, and in the societies which have not passed through the crucible of feudalism, the primogeniture which seems to have prevailed never transformed itself into the primogeniture of the later feudal europe. when the group of kinsmen ceased to be governed through a series of generations by a hereditary chief, the domain which had been managed for all appears to have been equally divided among all. why did this not occur in the feudal world? if during the confusions of the first feudal period the eldest son held the land for the behoof of the whole family, why was it that when feudal europe had consolidated itself, and regular communities were again established, the whole family did not resume that capacity for equal inheritance which had belonged to roman and german alike? the key which unlocks this difficulty has rarely been seized by the writers who occupy themselves in tracing the genealogy of feudalism. they perceive the materials of the feudal institutions, but they miss the cement. the ideas and social forms which contributed to the formation of the system were unquestionably barbarian and archaic, but, as soon as courts and lawyers were called in to interpret and define it, the principles of interpretation which they applied to it were those of the latest roman jurisprudence, and were therefore excessively refined and matured. in a patriarchally governed society, the eldest son may succeed to the government of the agnatic group, and to the absolute disposal of its property. but he is not therefore a true proprietor. he has correlative duties not involved in the conception of proprietorship, but quite undefined and quite incapable of definition. the later roman jurisprudence, however, like our own law, looked upon uncontrolled power over property as equivalent to ownership, and did not, and, in fact, could not, take notice of liabilities of such a kind, that the very conception of them belonged to a period anterior to regular law. the contact of the refined and the barbarous notion had inevitably for its effect the conversion of the eldest son into legal proprietor of the inheritance. the clerical and secular lawyers so defined his position from the first; but it was only by insensible degrees that the younger brother, from participating on equal terms in all the dangers and enjoyments of his kinsman, sank into the priest, the soldier of fortune, or the hanger-on of the mansion. the legal revolution was identical with that which occurred on a smaller scale, and in quite recent times, through the greater part of the highlands of scotland. when called in to determine the legal powers of the chieftain over the domains which gave sustenance to the clan, scottish jurisprudence had long since passed the point at which it could take notice of the vague limitations on completeness of dominion imposed by the claims of the clansmen, and it was inevitable therefore that it should convert the patrimony of many into the estate of one. for the sake of simplicity i have called the mode of succession primogeniture whenever a single son or descendant succeeds to the authority over a household or society. it is remarkable, however, that in the few very ancient examples which remain to us of this sort of succession, it is not always the eldest son, in the sense familiar to us, who takes up the representation. the form of primogeniture which has spread over western europe has also been perpetuated among the hindoos, and there is every reason to believe that it is the normal form. under it, not only the eldest son, but the eldest line is always preferred. if the eldest son fails, his eldest son has precedence not only over brothers but over uncles; and, if he too fails, the same rule is followed in the next generation. but when the succession is not merely to _civil_ but to _political_ power, a difficulty may present itself which will appear of greater magnitude according as the cohesion of society is less perfect. the chieftain who last exercised authority may have outlived his eldest son, and the grandson who is primarily entitled to succeed may be too young and immature to undertake the actual guidance of the community, and the administration of its affairs. in such an event, the expedient which suggests itself to the more settled societies is to place the infant heir under guardianship till he reaches the age of fitness for government. the guardianship is generally that of the male agnates; but it is remarkable that the contingency supposed is one of the rare cases in which ancient societies have consented to the exercise of power by women, doubtless out of respect to the overshadowing claims of the mother. in india, the widow of a hindoo sovereign governs in the name of her infant son, and we cannot but remember that the custom regulating succession to the throne of france--which, whatever be its origin, is doubtless of the highest antiquity--preferred the queen-mother to all other claimants for the regency, at the same time that it rigorously excluded all females from the throne. there is, however, another mode of obviating the inconvenience attending the devolution of sovereignty on an infant heir, and it is one which would doubtless occur spontaneously to rudely organised communities. this is to set aside the infant heir altogether, and confer the chieftainship on the eldest surviving male of the first generation. the celtic clan-associations, among the many phenomena which they have preserved of an age in which civil and political society were not yet even rudimentarily separated, have brought down this rule of succession to historical times. with them, it seems to have existed in the form of a positive canon, that, failing the eldest son, his next brother succeeds in priority to all grandsons, whatever be their age at the moment when the sovereignty devolves. some writers have explained the principle by assuming that the celtic customs took the last chieftain as a sort of root or stock, and then gave the succession to the descendant who should be least remote from him; the uncle thus being preferred to the grandson as being nearer to the common root. no objection can be taken to this statement if it be merely intended as a description of the system of succession; but it would be a serious error to conceive the men who first adopted the rule as applying a course of reasoning which evidently dates from the time when feudal schemes of succession begun to be debated among lawyers. the true origin of the preference of the uncle to the grandson is doubtless a simple calculation on the part of rude men in a rude society that it is better to be governed by a grown chieftain than by a child, and that the younger son is more likely to have come to maturity than any of the eldest son's descendants. at the same time, we have some evidence that the form of primogeniture with which we are best acquainted is the primary form, in the tradition that the assent of the clan was asked when an infant heir was passed over in favour of his uncle. there is a tolerably well authenticated instance of this ceremony in the annals of the macdonalds. under mahometan law, which has probably preserved an ancient arabian custom, inheritances of property are divided equally among sons, the daughters taking a half share; but if any of the children die before the division of the inheritance, leaving issue behind, these grandchildren are entirely excluded by their uncles and aunts. consistently with this principle, the succession, when political authority devolves, is according to the form of primogeniture which appears to have obtained among the celtic societies. in the two great mahometan families of the west, the rule is believed to be, that the uncle succeeds to the throne in preference to the nephew, though the latter be the son of an elder brother; but though this rule has been followed quite recently in egypt, i am informed that there is some doubt as to its governing the devolution of the turkish sovereignty. the policy of the sultans has in fact hitherto prevented cases for its application from occurring, and it is possible that their wholesale massacres of their younger brothers may have been perpetuated quite as much in the interest of their children as for the sake of making away with dangerous competitors for the throne. it is evident, however, that in polygamous societies the form of primogeniture will always tend to vary. many considerations may constitute a claim on the succession, the rank of the mother, for example, or her degree in the affections of the father. accordingly, some of the indian mahometan sovereigns, without pretending to any distinct testamentary power, claim the right of nominating the son who is to succeed. the _blessing_ mentioned in the scriptural history of isaac and his sons has sometimes been spoken of as a will, but it seems rather to have been a mode of naming an eldest son. chapter viii the early history of property the roman institutional treatises, after giving their definition of the various forms and modifications of ownership, proceed to discuss the natural modes of acquiring property. those who are unfamiliar with the history of jurisprudence are not likely to look upon these "natural modes" of acquisition as possessing, at first sight, either much speculative or much practical interest. the wild animal which is snared or killed by the hunter, the soil which is added to our field by the imperceptible deposits of a river, the tree which strikes its roots into our ground, are each said by the roman lawyers to be acquired by us _naturally_. the older jurisconsults had doubtless observed that such acquisitions were universally sanctioned by the usages of the little societies around them, and thus the lawyers of a later age, finding them classed in the ancient jus gentium, and perceiving them to be of the simplest description, allotted them a place among the ordinances of nature. the dignity with which they were invested has gone on increasing in modern times till it is quite out of proportion to their original importance. theory has made them its favourite food, and has enabled them to exercise the most serious influence on practice. it will be necessary for us to attend to one only among these "natural modes of acquisition," occupatio or occupancy. occupancy is the advisedly taking possession of that which at the moment is the property of no man, with the view (adds the technical definition) of acquiring property in it for yourself. the objects which the roman lawyers called _res nullius_--things which have not or have never had an owner--can only be ascertained by enumerating them. among things which _never had_ an owner are wild animals, fishes, wild fowl, jewels disinterred for the first time, and lands newly discovered or never before cultivated. among things which _have not_ an owner are moveables which have been abandoned, lands which have been deserted, and (an anomalous but most formidable item) the property of an enemy. in all these objects the full rights of dominion were acquired by the _occupant_ who first took possession of them with the intention of keeping them as his own--an intention which, in certain cases, had to be manifested by specific acts. it is not difficult, i think, to understand the universality which caused the practice of occupancy to be placed by one generation of roman lawyers in the law common to all nations, and the simplicity which occasioned its being attributed by another to the law of nature. but for its fortunes in modern legal history we are less prepared by _à priori_ considerations. the roman principle of occupancy, and the rules into which the jurisconsults expanded it, are the source of all modern international law on the subject of capture in war and of the acquisition of sovereign rights in newly discovered countries. they have also supplied a theory of the origin of property, which is at once the popular theory, and the theory which, in one form or another, is acquiesced in by the great majority of speculative jurists. i have said that the roman principle of occupancy has determined the tenor of that chapter of international law which is concerned with capture in war. the law of warlike capture derives its rules from the assumption that communities are remitted to a state of nature by the outbreak of hostilities, and that, in the artificial natural condition thus produced, the institution of private property falls into abeyance so far as concerns the belligerents. as the later writers on the law of nature have always been anxious to maintain that private property was in some sense sanctioned by the system which they were expounding, the hypothesis that an enemy's property is _res nullius_ has seemed to them perverse and shocking, and they are careful to stigmatise it as a mere fiction of jurisprudence. but, as soon as the law of nature is traced to its source in the jus gentium, we see at once how the goods of an enemy came to be looked upon as nobody's property, and therefore as capable of being acquired by the first occupant. the idea would occur spontaneously to persons practising the ancient forms of warfare, when victory dissolved the organisation of the conquering army and dismissed the soldiers to indiscriminate plunder. it is probable, however, that originally it was only moveable property which was thus permitted to be acquired by the captor. we know on independent authority that a very different rule prevailed in ancient italy as to the acquisition of ownership in the soil of a conquered country, and we may therefore suspect that the application of the principle of occupancy to land (always a matter of difficulty) dates from the period when the jus gentium was becoming the code of nature, and that it is the result of a generalisation effected by the jurisconsults of the golden age. their dogmas on the point are preserved in the pandects of justinian, and amount to an unqualified assertion that enemy's property of every sort is _res nullius_ to the other belligerent, and that occupancy, by which the captor makes them his own, is an institution of natural law. the rules which international jurisprudence derives from these positions have sometimes been stigmatised as needlessly indulgent to the ferocity and cupidity of combatants, but the charge has been made, i think, by persons who are unacquainted with the history of wars, and who are consequently ignorant how great an exploit it is to command obedience for a rule of any kind. the roman principle of occupancy, when it was admitted into the modern law of capture in war, drew with it a number of subordinate canons, limiting and giving precision to its operation, and if the contests which have been waged since the treatise of grotius became an authority, are compared with those of an earlier date, it will be seen that, as soon as the roman maxims were received, warfare instantly assumed a more tolerable complexion. if the roman law of occupancy is to be taxed with having had pernicious influence on any part of the modern law of nations, there is another chapter in it which may be said, with some reason, to have been injuriously affected. in applying to the discovery of new countries the same principles which the romans had applied to the finding of a jewel, the publicists forced into their service a doctrine altogether unequal to the task expected from it. elevated into extreme importance by the discoveries of the great navigators of the fifteenth and sixteenth centuries, it raised more disputes than it solved. the greatest uncertainty was very shortly found to exist on the very two points on which certainty was most required, the extent of the territory which was acquired for his sovereign by the discoverer, and the nature of the acts which were necessary to complete the _adprehensio_ or assumption of sovereign possession. moreover, the principle itself, conferring as it did such enormous advantages as the consequence of a piece of good luck, was instinctively mutinied against by some of the most adventurous nations in europe, the dutch, the english, and the portuguese. our own countrymen, without expressly denying the rule of international law, never did, in practice, admit the claim of the spaniards to engross the whole of america south of the gulf of mexico, or that of the king of france to monopolise the valleys of the ohio and the mississippi. from the accession of elizabeth to the accession of charles the second, it cannot be said that there was at any time thorough peace in the american waters, and the encroachments of the new england colonists on the territory of the french king continued for almost a century longer. bentham was so struck with the confusion attending the application of the legal principle, that he went out of his way to eulogise the famous bull of pope alexander the sixth, dividing the undiscovered countries of the world between the spaniards and portuguese by a line drawn one hundred leagues west of the azores; and, grotesque as his praises may appear at first sight, it may be doubted whether the arrangement of pope alexander is absurder in principle than the rule of public law, which gave half a continent to the monarch whose servants had fulfilled the conditions required by roman jurisprudence for the acquisition of property in a valuable object which could be covered by the hand. to all who pursue the inquiries which are the subject of this volume, occupancy is pre-eminently interesting on the score of the service it has been made to perform for speculative jurisprudence, in furnishing a supposed explanation of the origin of private property. it was once universally believed that the proceeding implied in occupancy was identical with the process by which the earth and its fruits, which were at first in common, became the allowed property of individuals. the course of thought which led to this assumption is not difficult to understand, if we seize the shade of difference which separates the ancient from the modern conception of natural law. the roman lawyers had laid down that occupancy was one of the natural modes of acquiring property, and they undoubtedly believed that, were mankind living under the institutions of nature, occupancy would be one of their practices. how far they persuaded themselves that such a condition of the race had ever existed, is a point, as i have already stated, which their language leaves in much uncertainty; but they certainly do seem to have made the conjecture, which has at all times possessed much plausibility, that the institution of property was not so old as the existence of mankind. modern jurisprudence, accepting all their dogmas without reservation, went far beyond them in the eager curiosity with which it dwelt on the supposed state of nature. since then it had received the position that the earth and its fruits were once _res nullius_, and since its peculiar view of nature led it to assume without hesitation that the human race had actually practised the occupancy of _res nullius_ long before the organisation of civil societies, the inference immediately suggested itself that occupancy was the process by which the "no man's goods" of the primitive world became the private property of individuals in the world of history. it would be wearisome to enumerate the jurists who have subscribed to this theory in one shape or another, and it is the less necessary to attempt it because blackstone, who is always a faithful index of the average opinions of his day, has summed them up in his 2nd book and 1st chapter. "the earth," he writes, "and all things therein were the general property of mankind from the immediate gift of the creator. not that the communion of goods seems ever to have been applicable, even in the earliest ages, to aught but the substance of the thing; nor could be extended to the use of it. for, by the law of nature and reason he who first began to use it acquired therein a kind of transient property that lasted so long as he was using it, and no longer; or to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. thus the ground was in common, and no part was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust and contrary to the law of nature to have driven him by force, but the instant that he quitted the use of occupation of it, another might seize it without injustice." he then proceeds to argue that "when mankind increased in number, it became necessary to entertain conceptions of more permanent dominion, and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used." some ambiguities of expression in this passage lead to the suspicion that blackstone did not quite understand the meaning of the proposition which he found in his authorities, that property in the earth's surface was first acquired, under the law of nature, by the _occupant_; but the limitation which designedly or through misapprehension he has imposed on the theory brings it into a form which it has not infrequently assumed. many writers more famous than blackstone for precision of language have laid down that, in the beginning of things, occupancy first gave a right against the world to an exclusive but temporary enjoyment, and that afterwards this right, while it remained exclusive, became perpetual. their object in so stating their theory was to reconcile the doctrine that in the state of nature _res nullius_ became property through occupancy, with the inference which they drew from the scriptural history that the patriarchs did not at first permanently appropriate the soil which had been grazed over by their flocks and herds. the only criticism which could be directly applied to the theory of blackstone would consist in inquiring whether the circumstances which make up his picture of a primitive society are more or less probable than other incidents which could be imagined with equal readiness. pursuing this method of examination, we might fairly ask whether the man who had _occupied_ (blackstone evidently uses this word with its ordinary english meaning) a particular spot of ground for rest or shade would be permitted to retain it without disturbance. the chances surely are that his right to possession would be exactly coextensive with his power to keep it, and that he would be constantly liable to disturbance by the first comer who coveted the spot and thought himself strong enough to drive away the possessor. but the truth is that all such cavil at these positions is perfectly idle from the very baselessness of the positions themselves. what mankind did in the primitive state may not be a hopeless subject of inquiry, but of their motives for doing it it is impossible to know anything. these sketches of the plight of human beings in the first ages of the world are effected by first supposing mankind to be divested of a great part of the circumstances by which they are now surrounded, and by then assuming that, in the condition thus imagined, they would preserve the same sentiments and prejudices by which they are now actuated,--although, in fact, these sentiments may have been created and engendered by those very circumstances of which, by the hypothesis, they are to be stripped. there is an aphorism of savigny which has been sometimes thought to countenance a view of the origin of property somewhat similar to the theories epitomised by blackstone. the great german jurist has laid down that all property is founded on adverse possession ripened by prescription. it is only with respect to roman law that savigny makes this statement, and before it can fully be appreciated much labour must be expended in explaining and defining the expressions employed. his meaning will, however, be indicated with sufficient accuracy if we consider him to assert that, how far soever we carry our inquiry into the ideas of property received among the romans, however closely we approach in tracing them to the infancy of law, we can get no farther than a conception of ownership involving the three elements in the canon--possession, adverseness of possession, that is a holding not permissive or subordinate, but exclusive against the world, and prescription, or a period of time during which the adverse possession has uninterruptedly continued. it is exceedingly probable that this maxim might be enunciated with more generality than was allowed to it by its author, and that no sound or safe conclusion can be looked for from investigations into any system of laws which are pushed farther back than the point at which these combined ideas constitute the notion of proprietary right. meantime, so far from bearing out the popular theory of the origin of property, savigny's canon is particularly valuable as directing our attention to its weakest point. in the view of blackstone and those whom he follows, it was the mode of assuming the exclusive enjoyment which mysteriously affected the minds of the fathers of our race. but the mystery does not reside here. it is not wonderful that property began in adverse possession. it is not surprising that the first proprietor should have been the strong man armed who kept his goods in peace. but why it was that lapse of time created a sentiment of respect for his possession--which is the exact source of the universal reverence of mankind for that which has for a long period _de facto_ existed--are questions really deserving the profoundest examination, but lying far beyond the boundary of our present inquiries. before pointing out the quarter in which we may hope to glean some information, scanty and uncertain at best, concerning the early history of proprietary right, i venture to state my opinion that the popular impression in reference to the part played by occupancy in the first stages of civilisation directly reverses the truth. occupancy is the advised assumption of physical possession; and the notion that an act of this description confers a title to "res nullius," so far from being characteristic of very early societies, is in all probability the growth of a refined jurisprudence and of a settled condition of the laws. it is only when the rights of property have gained a sanction from long practical inviolability and when the vast majority of the objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship has been asserted. the sentiment in which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty of proprietary rights which distinguish the beginnings of civilisation. its true basis seems to be, not an instinctive bias towards the institution of property, but a presumption arising out of the long continuance of that institution, that _everything ought to have an owner_. when possession is taken of a "res nullius," that is, of an object which _is_ not, or has _never_ been, reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally the subjects of an exclusive enjoyment, and that in the given case there is no one to invest with the right of property except the occupant. the occupant in short, becomes the owner, because all things are presumed to be somebody's property and because no one can be pointed out as having a better right than he to the proprietorship of this particular thing. even were there no other objection to the descriptions of mankind in their natural state which we have been discussing, there is one particular in which they are fatally at variance with the authentic evidence possessed by us. it will be observed that the acts and motives which these theories suppose are the acts and motives of individuals. it is each individual who for himself subscribes the social compact. it is some shifting sandbank in which the grains are individual men, that according to the theory of hobbes is hardened into the social rock by the wholesome discipline of force. it is an individual who, in the picture drawn by blackstone, "is in the occupation of a determined spot of ground for rest, for shade, or the like." the vice is one which necessarily afflicts all the theories descended from the natural law of the romans, which differed principally from their civil law in the account which it took of individuals, and which has rendered precisely its greatest service to civilisation in enfranchising the individual from the authority of archaic society. but ancient law, it must again be repeated, knows next to nothing of individuals. it is concerned not with individuals, but with families, not with single human beings, but groups. even when the law of the state has succeeded in permeating the small circles of kindred into which it had originally no means of penetrating, the view it takes of individuals is curiously different from that taken by jurisprudence in its maturest stage. the life of each citizen is not regarded as limited by birth and death; it is but a continuation of the existence of his forefathers, and it will be prolonged in the existence of his descendants. the roman distinction between the law of persons and the law of things, which though extremely convenient is entirely artificial, has evidently done much to divert inquiry on the subject before us from the true direction. the lessons learned in discussing the jus personarum have been forgotten where the jus rerum is reached, and property, contract, and delict, have been considered as if no hints concerning their original nature were to be gained from the facts ascertained respecting the original condition of persons. the futility of this method would be manifest if a system of pure archaic law could be brought before us, and if the experiment could be tried of applying to it the roman classifications. it would soon be seen that the separation of the law of persons from that of things has no meaning in the infancy of law, that the rules belonging to the two departments are inextricably mingled together, and that the distinctions of the later jurists are appropriate only to the later jurisprudence. from what has been said in the earlier portions of this treatise, it will be gathered that there is a strong _à priori_ improbability of our obtaining any clue to the early history of property, if we confine our notice to the proprietary rights of individuals. it is more than likely that joint-ownership, and not separate ownership, is the really archaic institution, and that the forms of property which will afford us instruction will be those which are associated with the rights of families and of groups of kindred. the roman jurisprudence will not here assist in enlightening us, for it is exactly the roman jurisprudence which, transformed by the theory of natural law, has bequeathed to the moderns the impression that individual ownership is the normal state of proprietary right, and that ownership in common by groups of men is only the exception to a general rule. there is, however, one community which will always be carefully examined by the inquirer who is in quest of any lost institution of primeval society. how far soever any such institution may have undergone change among the branch of the indo-european family which has been settled for ages in india, it will seldom be found to have entirely cast aside the shell in which it was originally reared. it happens that, among the hindoos, we do find a form of ownership which ought at once to rivet our attention from its exactly fitting in with the ideas which our studies in the law of persons would lead us to entertain respecting the original condition of property. the village community of india is at once an organised patriarchal society and an assemblage of co-proprietors. the personal relations to each other of the men who compose it are indistinguishably confounded with their proprietary rights, and to the attempts of english functionaries to separate the two may be assigned some of the most formidable miscarriages of anglo-indian administration. the village community is known to be of immense antiquity. in whatever direction research has been pushed into indian history, general or local, it has always found the community in existence at the farthest point of its progress. a great number of intelligent and observant writers, most of whom had no theory of any sort to support concerning its nature and origin, agree in considering it the least destructible institution of a society which never willingly surrenders any one of its usages to innovation. conquests and revolutions seem to have swept over it without disturbing or displacing it, and the most beneficent systems of government in india have always been those which have recognised it as the basis of administration. the mature roman law, and modern jurisprudence following in its wake, look upon co-ownership as an exceptional and momentary condition of the rights of property. this view is clearly indicated in the maxim which obtains universally in western europe, _nemo in communione potest invitus detineri_ ("no one can be kept in co-proprietorship against his will"). but in india this order of ideas is reversed, and it may be said that separate proprietorship is always on its way to become proprietorship in common. the process has been adverted to already. as soon as a son is born, he acquires a vested interest in his father's substance, and on attaining years of discretion he is even, in certain contingencies, permitted by the letter of the law to call for a partition of the family estate. as a fact, however, a division rarely takes place even at the death of the father, and the property constantly remains undivided for several generations, though every member of every generation has a legal right to an undivided share in it. the domain thus held in common is sometimes administered by an elected manager, but more generally, and in some provinces always, it is managed by the eldest agnate, by the eldest representative of the eldest line of the stock. such an assemblage of joint proprietors, a body of kindred holding a domain in common, is the simplest form of an indian village community, but the community is more than a brotherhood of relatives and more than an association of partners. it is an organised society, and besides providing for the management of the common fund, it seldom fails to provide, by a complete staff of functionaries, for internal government, for police, for the administration of justice, and for the apportionment of taxes and public duties. the process which i have described as that under which a village community is formed, may be regarded as typical. yet it is not to be supposed that every village community in india drew together in so simple a manner. although, in the north of india, the archives, as i am informed, almost invariably show that the community was founded by a single assemblage of blood-relations, they also supply information that men of alien extraction have always, from time to time, been engrafted on it, and a mere purchaser of a share may generally, under certain conditions, be admitted to the brotherhood. in the south of the peninsula there are often communities which appear to have sprung not from one but from two or more families; and there are some whose composition is known to be entirely artificial; indeed, the occasional aggregation of men of different castes in the same society is fatal to the hypothesis of a common descent. yet in all these brotherhoods either the tradition is preserved, or the assumption made, of an original common parentage. mountstuart elphinstone, who writes more particularly of the southern village communities, observes of them (_history of india_, i. 126): "the popular notion is that the village landholders are all descended from one or more individuals who settled the village; and that the only exceptions are formed by persons who have derived their rights by purchase or otherwise from members of the original stock. the supposition is confirmed by the fact that, to this day, there are only single families of landholders in small villages and not many in large ones; but each has branched out into so many members that it is not uncommon for the whole agricultural labour to be done by the landholders, without the aid either of tenants or of labourers. the rights of the landholders are theirs collectively and, though they almost always have a more or less perfect partition of them, they never have an entire separation. a landholder, for instance, can sell or mortgage his rights; but he must first have the consent of the village, and the purchaser steps exactly into his place and takes up all his obligations. if a family becomes extinct, its share returns to the common stock." some considerations which have been offered in the fifth chapter of this volume will assist the reader, i trust, in appreciating the significance of elphinstone's language. no institution of the primitive world is likely to have been preserved to our day, unless it has acquired an elasticity foreign to its original nature through some vivifying legal fiction. the village community then is not necessarily an assemblage of blood-relations, but it is _either_ such an assemblage _or_ a body of co-proprietors formed on the model of an association of kinsmen. the type with which it should be compared is evidently not the roman family, but the roman gens or house. the gens was also a group on the model of the family; it was the family extended by a variety of fictions of which the exact nature was lost in antiquity. in historical times, its leading characteristics were the very two which elphinstone remarks in the village community. there was always the assumption of a common origin, an assumption sometimes notoriously at variance with fact; and, to repeat the historian's words, "if a family became extinct, its share returned to the common stock." in old roman law, unclaimed inheritances escheated to the gentiles. it is further suspected by all who have examined their history that the communities, like the gentes, have been very generally adulterated by the admission of strangers, but the exact mode of absorption cannot now be ascertained. at present, they are recruited, as elphinstone tells us, by the admission of purchasers, with the consent of the brotherhood. the acquisition of the adopted member is, however, of the nature of a universal succession; together with the share he has bought, he succeeds to the liabilities which the vendor had incurred towards the aggregate group. he is an emptor familiæ, and inherits the legal clothing of the person whose place he begins to fill. the consent of the whole brotherhood required for his admission may remind us of the consent which the comitia curiata, the parliament of that larger brotherhood of self-styled kinsmen, the ancient roman commonwealth, so strenuously insisted on as essential to the legalisation of an adoption or the confirmation of a will. the tokens of an extreme antiquity are discoverable in almost every single feature of the indian village communities. we have so many independent reasons for suspecting that the infancy of law is distinguished by the prevalence of co-ownership by the intermixture of personal with proprietary rights, and by the confusion of public with private duties, that we should be justified in deducing many important conclusions from our observation of these proprietary brotherhoods, even if no similarly compounded societies could be detected in any other part of the world. it happens, however, that much earnest curiosity has been very recently attracted to a similar set of phenomena in those parts of europe which have been most slightly affected by the feudal transformation of property, and which in many important particulars have as close an affinity with the eastern as with the western world. the researches of m. de haxthausen, m. tengoborski, and others, have shown us that the russian villages are not fortuitous assemblages of men, nor are they unions founded on contract; they are naturally organised communities like those of india. it is true that these villages are always in theory the patrimony of some noble proprietor and the peasants have within historical times been converted into the predial, and to a great extent into the personal, serfs of the seignior. but the pressure of this superior ownership has never crushed the ancient organisation of the village, and it is probable that the enactment of the czar of russia, who is supposed to have introduced serfdom, was really intended to prevent the peasants from abandoning that co-operation without which the old social order could not long be maintained. in the assumption of an agnatic connection between the villagers, in the blending of personal rights with privileges of ownership, and in a variety of spontaneous provisions for internal administration, the russian village appears to be a nearly exact repetition of the indian community; but there is one important difference which we note with the greatest interest. the co-owners of an indian village, though their property is blended, have their rights distinct, and this separation of rights is complete and continues indefinitely. the severance of rights is also theoretically complete in a russian village, but there it is only temporary. after the expiration of a given, but not in all cases of the same, period separate ownerships are extinguished, the land of the village is thrown into a mass, and then it is re-distributed among the families composing the community, according to their number. this repartition having been effected, the rights of families and of individuals are again allowed to branch out into various lines, which they continue to follow till another period of division comes round. an even more curious variation from this type of ownership occurs in some of those countries which long formed a debateable land between the turkish empire and the possessions of the house of austria. in servia, in croatia, and the austrian sclavonia, the villages are also brotherhoods of persons who are at once co-owners and kinsmen; but there the internal arrangements of the community differ from those adverted to in the last two examples. the substance of the common property is in this case neither divided in practice nor considered in theory as divisible, but the entire land is cultivated by the combined labour of all the villagers, and the produce is annually distributed among the households, sometimes according to their supposed wants, sometimes according to rules which give to particular persons a fixed share of the usufruct. all these practices are traced by the jurists of the east of europe to a principle which is asserted to be found in the earliest sclavonian laws, the principle that the property of families cannot be divided for a perpetuity. the great interest of these phenomena in an inquiry like the present arises from the light they throw on the development of distinct proprietary rights _inside_ the groups by which property seems to have been originally held. we have the strongest reason for thinking that property once belonged not to individuals nor even to isolated families, but to larger societies composed on the patriarchal model; but the mode of transition from ancient to modern ownerships, obscure at best, would have been infinitely obscurer if several distinguishable forms of village communities had not been discovered and examined. it is worth while to attend to the varieties of internal arrangement within the patriarchal groups which are, or were till recently, observable among races of indo-european blood. the chiefs of the ruder highland clans used, it is said, to dole out food to the heads of the households under their jurisdiction at the very shortest intervals, and sometimes day by day. a periodical distribution is also made to the sclavonian villagers of the austrian and turkish provinces by the elders of their body, but then it is a distribution once for all of the total produce of the year. in the russian villages, however, the substance of the property ceases to be looked upon as indivisible, and separate proprietary claims are allowed freely to grow up, but then the progress of separation is peremptorily arrested after it has continued a certain time. in india, not only is there no indivisibility of the common fund, but separate proprietorship in parts of it may be indefinitely prolonged and may branch out into any number of derivative ownerships, the _de facto_ partition of the stock being, however, checked by inveterate usage, and by the rule against the admission of strangers without the consent of the brotherhood. it is not of course intended to insist that these different forms of the village community represent distinct stages in a process of transmutation which has been everywhere accomplished in the same manner. but, though the evidence does not warrant our going so far as this, it renders less presumptuous the conjecture that private property, in the shape in which we know it, was chiefly formed by the gradual disentanglement of the separate rights of individuals from the blended rights of a community. our studies in the law of persons seemed to show us the family expanding into the agnatic group of kinsmen, then the agnatic group dissolving into separate households; lastly the household supplanted by the individual; and it is now suggested that each step in the change corresponds to an analogous alteration in the nature of ownership. if there be any truth in the suggestion, it is to be observed that it materially affects the problem which theorists on the origin of property have generally proposed to themselves. the question--perhaps an insoluble one--which they have mostly agitated is, what were the motives which first induced men to respect each other's possessions? it may still be put, without much hope of finding an answer to it, in the form of any inquiry into the reasons which led one composite group to keep aloof from the domain of another. but, if it be true that far the most important passage in the history of private property is its gradual elimination from the co-ownership of kinsmen, then the great point of inquiry is identical with that which lies on the threshold of all historical law--what were the motives which originally prompted men to hold together in the family union? to such a question, jurisprudence, unassisted by other sciences, is not competent to give a reply. the fact can only be noted. the undivided state of property in ancient societies is consistent with a peculiar sharpness of division, which shows itself as soon as any single share is completely separated from the patrimony of the group. this phenomenon springs, doubtless, from the circumstance that the property is supposed to become the domain of a new group, so that any dealing with it, in its divided state, is a transaction between two highly complex bodies. i have already compared ancient law to modern international law, in respect of the size and complexity of the corporate associations, whose rights and duties it settles. as the contracts and conveyances known to ancient law are contracts and conveyances to which not single individuals, but organised companies of men, are parties, they are in the highest degree ceremonious; they require a variety of symbolical acts and words intended to impress the business on the memory of all who take part in it; and they demand the presence of an inordinate number of witnesses. from these peculiarities, and others allied to them, springs the universally unmalleable character of the ancient forms of property. sometimes the patrimony of the family is absolutely inalienable, as was the case with the sclavonians, and still oftener, though alienations may not be entirely illegitimate, they are virtually impracticable, as among most of the germanic tribes, from the necessity of having the consent of a large number of persons to the transfer. where these impediments do not exist, or can be surmounted, the act of conveyance itself is generally burdened with a perfect load of ceremony, in which not one iota can be safely neglected. ancient law uniformly refuses to dispense with a single gesture, however grotesque; with a single syllable, however its meaning may have been forgotten; with a single witness, however superfluous may be his testimony. the entire solemnities must be scrupulously completed by persons legally entitled to take part in them, or else the conveyance is null, and the seller is re-established in the rights of which he had vainly attempted to divest himself. these various obstacles to the free circulation of the objects of use and enjoyment, begin of course to make themselves felt as soon as society has acquired even a slight degree of activity, and the expedients by which advancing communities endeavour to overcome them form the staple of the history of property. of such expedients there is one which takes precedence of the rest from its antiquity and universality. the idea seems to have spontaneously suggested itself to a great number of early societies, to classify property into kinds. one kind or sort of property is placed on a lower footing of dignity than the others, but at the same time is relieved from the fetters which antiquity has imposed on them. subsequently, the superior convenience of the rules governing the transfer and descent of the lower order of property becomes generally recognised, and by a gradual course of innovation the plasticity of the less dignified class of valuable objects is communicated to the classes which stand conventionally higher. the history of roman property law is the history of the assimilation of res mancipi to res nec mancipi. the history of property on the european continent is the history of the subversion of the feudalised law of land by the romanised law of moveables; and, though the history of ownership in england is not nearly completed, it is visibly the law of personalty which threatens to absorb and annihilate the law of realty. the only _natural_ classification of the objects of enjoyment, the only classification which corresponds with an essential difference in the subject-matter, is that which divides them into moveables and immoveables. familiar as is this classification to jurisprudence, it was very slowly developed by roman law, from which we inherit it, and was only finally adopted by it in its latest stage. the classifications of ancient law have sometimes a superficial resemblance to this. they occasionally divide property into categories, and place immoveables in one of them; but then it is found that they either class along with immoveables a number of objects which have no sort of relation with them, or else divorce them from various rights to which they have a close affinity. thus, the res mancipi of roman law included not only land, but slaves, horses, and oxen. scottish law ranks with land a certain class of securities, and hindoo law associates it with slaves. english law, on the other hand, parts leases of land for years from other interests in the soil, and joins them to personalty under the name of chattels real. moreover, the classifications of ancient law are classifications implying superiority and inferiority; while the distinction between moveables and immoveables, so long at least as it was confined to roman jurisprudence, carried with it no suggestion whatever of a difference in dignity. the res mancipi, however, did certainly at first enjoy a precedence over the res nec mancipi, as did heritable property in scotland and realty in england, over the personalty to which they were opposed. the lawyers of all systems have spared no pains in striving to refer these classifications to some intelligible principle; but the reasons of the severance must ever be vainly sought for in the philosophy of law: they belong not to its philosophy, but to its history. the explanation which appears to cover the greatest number of instances is, that the objects of enjoyment honoured above the rest were the forms of property known first and earliest to each particular community, and dignified therefore emphatically with the designation of _property_. on the other hand, the articles not enumerated among the favoured objects seem to have been placed on a lower standing, because the knowledge of their value was posterior to the epoch at which the catalogue of superior property was settled. they were at first unknown, rare, limited in their uses, or else regarded as mere appendages to the privileged objects. thus, though the roman res mancipi included a number of moveable articles of great value, still the most costly jewels were never allowed to take rank as res mancipi, because they were unknown to the early romans. in the same way chattels real in england are said to have been degraded to the footing of personalty, from the infrequency and valuelessness of such estates under the feudal land-law. but the grand point of interest is, the continued degradation of these commodities when their importance had increased and their number had multiplied. why were they not successively included among the favoured objects of enjoyment? one reason is found in the stubbornness with which ancient law adheres to its classifications. it is a characteristic both of uneducated minds and of early societies, that they are little able to conceive a general rule apart from the particular applications of it with which they are practically familiar. they cannot dissociate a general term or maxim from the special examples which meet them in daily experience; and in this way the designation covering the best-known forms of property is denied to articles which exactly resemble them in being objects of enjoyment and subjects of right. but to these influences, which exert peculiar force in a subject-matter so stable as that of law, are afterwards added others more consistent with progress in enlightenment and in the conceptions of general expediency. courts and lawyers become at last alive to the inconvenience of the embarrassing formalities required for the transfer, recovery, or devolution of the favoured commodities, and grow unwilling to fetter the newer descriptions of property with the technical trammels which characterised the infancy of law. hence arises a disposition to keep these last on a lower grade in the arrangements of jurisprudence, and to permit their transfer by simpler processes than those which, in archaic conveyances, serve as stumbling-blocks to good faith and stepping-stones to fraud. we are perhaps in some danger of underrating the inconveniences of the ancient modes of transfer. our instruments of conveyance are written, so that their language, well pondered by the professional draftsman, is rarely defective in accuracy. but an ancient conveyance was not written, but _acted_. gestures and words took the place of written technical phraseology, and any formula mispronounced, or symbolical act omitted, would have vitiated the proceeding as fatally as a material mistake in stating the uses or setting out the remainders would, two hundred years ago, have vitiated an english deed. indeed, the mischiefs of the archaic ceremonial are even thus only half stated. so long as elaborate conveyances, written or acted, are required for the alienation of _land_ alone, the chances of mistake are not considerable in the transfer of a description of property which is seldom got rid of with much precipitation. but the higher class of property in the ancient world comprised not only land but several of the commonest and several of the most valuable moveables. when once the wheels of society had begun to move quickly, there must have been immense inconvenience in demanding a highly intricate form of transfer for a horse or an ox, or for the most costly chattel of the old world--the slave. such commodities must have been constantly and even ordinarily conveyed with incomplete forms, and held, therefore, under imperfect titles. the res mancipi of old roman law were land--in historical times, land on italian soil,--slaves and beasts of burden, such as horses and oxen. it is impossible to doubt that the objects which make up the class are the instruments of agricultural labour, the commodities of first consequence to a primitive people. such commodities were at first, i imagine, called emphatically things or property, and the mode of conveyance by which they were transferred was called a mancipium or mancipation; but it was not probably till much later that they received the distinctive appellation of res mancipi, "things which require a mancipation." by their side there may have existed or grown up a class of objects, for which it was not worth while to insist upon the full ceremony of mancipation. it would be enough if, in transferring these last from owner to owner, a part only of the ordinary formalities were proceeded with, namely, that actual delivery, physical transfer, or _tradition_, which is the most obvious index of a change of proprietorship. such commodities were the res nec mancipi of the ancient jurisprudence, "things which did not require a mancipation," little prized probably at first, and not often passed from one group of proprietors to another, while, however, the list of the res mancipi was irrevocably closed; that of the res nec mancipi admitted of indefinite expansion; and hence every fresh conquest of man over material nature added an item to the res nec mancipi, or effected an improvement in those already recognised. insensibly, therefore, they mounted to an equality with the res mancipi, and the impression of an intrinsic inferiority being thus dissipated, men began to observe the manifold advantages of the simple formality which accompanied their transfer over the more intricate and more venerable ceremonial. two of the agents of legal amelioration, fictions and equity, were assiduously employed by the roman lawyers to give the practical effects of a mancipation to a tradition: and, though roman legislators long shrank from enacting that the right of property in a res mancipi should be immediately transferred by bare delivery of the article, yet even this step was at last ventured upon by justinian, in whose jurisprudence the difference between res mancipi and res nec mancipi disappears, and tradition or delivery becomes the one great conveyance known to the law. the marked preference which the roman lawyers very early gave to tradition caused them to assign it a place in their theory which has helped to blind their modern disciples to its true history. it was classed among the "natural" modes of acquisition, both because it was generally practised among the italian tribes, and because it was a process which attained its object by the simplest mechanism. if the expressions of the jurisconsults be pressed, they undoubtedly imply that tradition, which belongs to the law natural, is more ancient than mancipation, which is an institution of civil society; and this, i need not say, is the exact reverse of the truth. the distinction between res mancipi and res nec mancipi is the type of a class of distinctions to which civilisation is much indebted, distinctions which run through the whole mass of commodities, placing a few of them in a class by themselves, and relegating the others to a lower category. the inferior kinds of property are first, from disdain and disregard, released from the perplexed ceremonies in which primitive law delights, and thus afterwards, in another state of intellectual progress, the simple methods of transfer and recovery which have been allowed to come into use serve as a model which condemns by its convenience and simplicity the cumbrous solemnities inherited from ancient days. but, in some societies, the trammels in which property is tied up are much too complicated and stringent to be relaxed in so easy a manner. whenever male children have been born to a hindoo, the law of india, as i have stated, gives them all an interest in his property, and makes their consent a necessary condition of its alienation. in the same spirit, the general usage of the old germanic peoples--it is remarkable that the anglo-saxon customs seem to have been an exception--forbade alienations without the consent of the male children; and the primitive law of the sclavonians even prohibited them altogether. it is evident that such impediments as these cannot be overcome by a distinction between kinds of property, inasmuch as the difficulty extends to commodities of all sorts; and accordingly, ancient law, when once launched on a course of improvement, encounters them with a distinction of another character, a distinction classifying property, not according to its nature but according to its origin. in india, where there are traces of both systems of classification, the one which we are considering is exemplified in the difference which hindoo law establishes between inheritances and acquisitions. the inherited property of the father is shared by the children as soon as they are born; but according to the custom of most provinces, the acquisitions made by him during his lifetime are wholly his own, and can be transferred by him at pleasure. a similar distinction was not unknown to roman law, in which the earliest innovation on the parental powers took the form of a permission given to the son to keep for himself whatever he might have acquired in military service. but the most extensive use ever made of this mode of classification appears to have been among the germans. i have repeatedly stated that the _allod_, though not inalienable, was commonly transferable with the greatest difficulty; and moreover, it descended exclusively to the agnatic kindred. hence an extraordinary variety of distinctions came to be recognised, all intended to diminish the inconveniences inseparable from allodial property. the _wehrgeld_, for example, or composition for the homicide of a relative, which occupies so large a space in german jurisprudence, formed no part of the family domain, and descended according to rules of succession altogether different. similarly, the _reipus_, or fine leviable on the re-marriage of a widow, did not enter into the _allod_ of the person to whom it was paid, and followed a line of devolution in which the privileges of the agnates were neglected. the law, too, as among the hindoos, distinguished the acquisitions of the chief of the household from his inherited property, and permitted him to deal with them under much more liberal conditions. classifications of the other sort were also admitted, and the familiar distinction drawn between land and moveables; but moveable property was divided into several subordinate categories, to each of which different rules applied. this exuberance of classification, which may strike us as strange in so rude a people as the german conquerors of the empire, is doubtless to be explained by the presence in their systems of a considerable element of roman law, absorbed by them during their long sojourn on the confines of the roman dominion. it is not difficult to trace a great number of the rules governing the transfer and devolution of the commodities which lay outside the _allod_, to their source in roman jurisprudence, from which they were probably borrowed at widely distant epochs, and in fragmentary importations. how far the obstacles to the free circulation of property were surmounted by such contrivances, we have not the means even of conjecturing, for the distinctions adverted to have no modern history. as i before explained, the allodial form of property was entirely lost in the feudal, and when the consolidation of feudalism was once completed, there was practically but one distinction left standing of all those which had been known to the western world--the distinction between land and goods, immoveables and moveables. externally this distinction was the same with that which roman law had finally accepted, but the law of the middle ages differed from that of rome in distinctly considering immoveable property to be more dignified than moveable. yet this one sample is enough to show the importance of the class of expedients to which it belongs. in all the countries governed by systems based on the french codes, that is, through much the greatest part of the continent of europe, the law of moveables, which was always roman law, has superseded and annulled the feudal law of land. england is the only country of importance in which this transmutation, though it has gone some way, is not nearly accomplished. our own, too, it may be added, is the only considerable european country in which the separation of moveables from immoveables has been somewhat disturbed by the same influences which caused the ancient classifications to depart from the only one which is countenanced by nature. in the main, the english distinction has been between land and goods; but a certain class of goods have gone as heir-looms with the land, and a certain description of interests in land have from historical causes been ranked with personalty. this is not the only instance in which english jurisprudence, standing apart from the main current of legal modification, has reproduced phenomena of archaic law. i proceed to notice one or two more contrivances by which the ancient trammels of proprietary right were more or less successfully relaxed, premising that the scheme of this treatise only permits me to mention those which are of great antiquity. on one of them in particular it is necessary to dwell for a moment or two, because persons unacquainted with the early history of law will not be easily persuaded that a principle, of which modern jurisprudence has very slowly and with the greatest difficulty obtained the recognition, was really familiar to the very infancy of legal science. there is no principle in all law which the moderns, in spite of its beneficial character, have been so loath to adopt and to carry to its legitimate consequences as that which was known to the romans as usucapion, and which has descended to modern jurisprudence under the name of prescription. it was a positive rule of the oldest roman law, a rule older than the twelve tables, that commodities which had been uninterruptedly possessed for a certain period became the property of the possessor. the period of possession was exceedingly short--one or two years according to the nature of the commodities--and in historical times usucapion was only allowed to operate when possession had commenced in a particular way; but i think it likely that at a less advanced epoch possession was converted into ownership under conditions even less severe than we read of in our authorities. as i have said before, i am far from asserting that the respect of men for _de facto_ possession is a phenomenon which jurisprudence can account for by itself, but it is very necessary to remark that primitive societies, in adopting the principle of usucapion, were not beset with any of the speculative doubts and hesitations which have impeded its reception among the moderns. prescriptions were viewed by the modern lawyers, first with repugnance, afterwards with reluctant approval. in several countries, including our own, legislation long declined to advance beyond the rude device of barring all actions based on a wrong which had been suffered earlier than a fixed point of time in the past, generally the first year of some preceding reign; nor was it till the middle ages had finally closed, and james the first had ascended the throne of england, that we obtained a true statute of limitation of a very imperfect kind. this tardiness in copying one of the most famous chapters of roman law, which was no doubt constantly read by the majority of european lawyers, the modern world owes to the influence of the canon law. the ecclesiastical customs out of which the canon law grew, concerned as they were with sacred or quasi-sacred interests, very naturally regarded the privileges which they conferred as incapable of being lost through disuse however prolonged; and in accordance with this view, the spiritual jurisprudence, when afterwards consolidated, was distinguished by a marked leaning against prescriptions. it was the fate of the canon law, when held up by the clerical lawyers as a pattern to secular legislation, to have a peculiar influence on first principles. it gave to the bodies of custom which were formed throughout europe far fewer express rules than did the roman law, but then it seems to have communicated a bias to professional opinion on a surprising number of fundamental points, and the tendencies thus produced progressively gained strength as each system was developed. one of the dispositions it produced was a disrelish for prescriptions; but i do not know that this prejudice would have operated as powerfully as it has done, if it had not fallen in with the doctrine of the scholastic jurists of the realist sect, who taught that, whatever turn actual legislation might take, a _right_, how long soever neglected, was in point of fact indestructible. the remains of this state of feeling still exist. wherever the philosophy of law is earnestly discussed, questions respecting the speculative basis of prescription are always hotly disputed; and it is still a point of the greatest interest in france and germany, whether a person who has been out of possession for a series of years is deprived of his ownership as a penalty for his neglect, or loses it through the summary interposition of the law in its desire to have a _finis litium_. but no such scruples troubled the mind of early roman society. their ancient usages directly took away the ownership of everybody who had been out of possession, under certain circumstances, during one or two years. what was the exact tenor of the rule of usucapion in its earliest shape, it is not easy to say; but, taken with the limitations which we find attending it in the books, it was a most useful security against the mischiefs of a too cumbrous system of conveyance. in order to have the benefit of usucapion, it was necessary that the adverse possession should have begun in good faith, that is, with belief on the part of the possessor that he was lawfully acquiring the property, and it was farther required that the commodity should have been transferred to him by some mode of alienation which, however unequal to conferring a complete title in the particular case, was at least recognised by the law. in the case therefore of a mancipation, however slovenly the performance might have been, yet if it had been carried so far as to involve a tradition or delivery, the vice of the title would be cured by usucapion in two years at most. i know nothing in the practice of the romans which testifies so strongly to their legal genius as the use which they made of usucapion. the difficulties which beset them were nearly the same with those which embarrassed and still embarrass the lawyers of england. owing to the complexity of their system, which as yet they had neither the courage nor the power to reconstruct, actual right was constantly getting divorced from technical right, the equitable ownership from the legal. but usucapion, as manipulated by the jurisconsults, supplied a self-acting machinery, by which the defects of titles to property were always in course of being cured, and by which the ownerships that were temporarily separated were again rapidly cemented together with the briefest possible delay. usucapion did not lose its advantages till the reforms of justinian. but as soon as law and equity had been completely fused, and when mancipation ceased to be the roman conveyance, there was no further necessity for the ancient contrivance, and usucapion, with its periods of time considerably lengthened, became the prescription which has at length been adopted by nearly all systems of modern law. i pass by with brief mention another expedient having the same object with the last, which, though it did not immediately make its appearance in english legal history, was of immemorial antiquity in roman law; such indeed is its apparent age that some german civilians, not sufficiently aware of the light thrown on the subject by the analogies of english law, have thought it even older than the mancipation. i speak of the cessio in jure, a collusive recovery, in a court of law, of property sought to be conveyed. the plaintiff claimed the subject of this proceeding with the ordinary forms of a litigation; the defendant made default; and the commodity was of course adjudged to the plaintiff. i need scarcely remind the english lawyer that this expedient suggested itself to our forefathers, and produced those famous fines and recoveries which did so much to undo the harshest trammels of the feudal land-law. the roman and english contrivances have very much in common and illustrate each other most instructively, but there is this difference between them, that the object of the english lawyers was to remove complications already introduced into the title, while the roman jurisconsults sought to prevent them by substituting a mode of transfer necessarily unimpeachable for one which too often miscarried. the device is, in fact, one which suggests itself as soon as courts of law are in steady operation, but are nevertheless still under the empire of primitive notions. in an advanced state of legal opinion, tribunals regard collusive litigation as an abuse of their procedure; but there has always been a time when, if their forms were scrupulously complied with, they never dreamed of looking further. the influence of courts of law and of their procedure upon property has been most extensive, but the subject is too large for the dimensions of this treatise, and would carry us further down the course of legal history than is consistent with its scheme. it is desirable, however, to mention, that to this influence we must attribute the importance of the distinction between property and possession--not, indeed, the distinction itself, which (in the language of an eminent english civilian) is the same thing as the distinction between the legal right to act upon a thing and the physical power to do so--but the extraordinary importance which the distinction has obtained in the philosophy of law. few educated persons are so little versed in legal literature as not to have heard that the language of the roman jurisconsults on the subject of possession long occasioned the greatest possible perplexity, and that the genius of savigny is supposed to have chiefly proved itself by the solution which he discovered for the enigma. possession, in fact, when employed by the roman lawyers, appears to have contracted a shade of meaning not easily accounted for. the word, as appears from its etymology, must have originally denoted physical contact or physical contact resumeable at pleasure; but, as actually used without any qualifying epithet, it signifies not simply physical detention, but physical detention coupled with the intention to hold the thing detained as one's own. savigny, following niebuhr, perceived that for this anomaly there could only be a historical origin. he pointed out that the patrician burghers of rome, who had become tenants of the greatest part of the public domain at nominal rents, were, in the view of the old roman law, mere possessors, but then they were possessors intending to keep their land against all comers. they, in truth, put forward a claim almost identical with that which has recently been advanced in england by the lessees of church lands. admitting that in theory they were the tenants-at-will of the state, they contended that time and undisturbed enjoyment had ripened their holding into a species of ownership, and that it would be unjust to eject them for the purpose of redistributing the domain. the association of this claim with the patrician tenancies, permanently influenced the sense of "possession." meanwhile the only legal remedies of which the tenants could avail themselves, if ejected or threatened with disturbance, were the possessory interdicts, summary processes of roman law which were either expressly devised by the prætor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right. it came, therefore, to be understood that everybody who possessed property _as his own_ had the power of demanding the interdicts, and, by a system of highly artificial pleading, the interdictal process was moulded into a shape fitted for the trial of conflicting claims to a disputed possession. then commenced a movement which, as mr. john austin pointed out, exactly reproduced itself in english law. proprietors, _domini_, began to prefer the simpler forms or speedier course of the interdict to the lagging and intricate formalities of the real action, and for the purpose of availing themselves of the possessory remedy fell back upon the possession which was supposed to be involved in their proprietorship. the liberty conceded to persons who were not true possessors, but owners, to vindicate their rights by possessory remedies, though it may have been at first a boon, had ultimately the effect of seriously deteriorating both english and roman jurisprudence. the roman law owes to it those subtleties on the subject of possession which have done so much to discredit it, while english law, after the actions which it appropriated to the recovery of real property had fallen into the most hopeless confusion, got rid at last of the whole tangled mass by a heroic remedy. no one can doubt that the virtual abolition of the english real actions which took place nearly thirty years since was a public benefit, but still persons sensitive to the harmonies of jurisprudence will lament that, instead of cleansing, improving, and simplifying the true proprietary actions, we sacrificed them all to the possessory action of ejectment, thus basing our whole system of land recovery upon a legal fiction. legal tribunals have also powerfully assisted to shape and modify conceptions of proprietary right by means of the distinction between law and equity, which always makes its first appearance as a distinction between jurisdictions. equitable property in england is simply property held under the jurisdiction of the court of chancery. at rome, the prætor's edict introduced its novel principles in the guise of a promise that under certain circumstances a particular action or a particular plea would be granted; and, accordingly, the property _in bonis_, or equitable property, of roman law was property exclusively protected by remedies which had their source in the edict. the mechanism by which equitable rights were saved from being overridden by the claims of the legal owner was somewhat different in the two systems. with us their independence is secured by the injunction of the court of chancery. since however law and equity, while not as yet consolidated, were administered under the roman system by the same court, nothing like the injunction was required, and the magistrate took the simpler course of refusing to grant to the civil law owner those actions and pleas by which alone he could obtain the property that belonged in equity to another. but the practical operation of both systems was nearly the same. both, by means of a distinction in procedure, were able to preserve new forms of property in a sort of provisional existence, until the time should come when they were recognised by the whole law. in this way, the roman prætor gave an immediate right of property to the person who had acquired a res mancipi by mere delivery, without waiting for the ripening of usucapion. similarly he in time recognised an ownership in the mortgagee who had at first been a mere "bailee" or depositary, and in the emphyteuta, or tenant of land which was subject to a fixed perpetual rent. following a parallel line of progress, the english court of chancery created a special proprietorship for the mortgagor, for the cestui que trust, for the married woman who had the advantage of a particular kind of settlement, and for the purchaser who had not yet acquired a complete legal ownership. all these are examples in which forms of proprietory right, distinctly new, were recognised and preserved. but indirectly property has been affected in a thousand ways by equity both in england and at rome. into whatever corner of jurisprudence its authors pushed the powerful instrument in their command, they were sure to meet, and touch, and more or less materially modify the law of property. when in the preceding pages i have spoken of certain ancient legal distinctions and expedients as having powerfully affected the history of ownership, i must be understood to mean that the greatest part of their influence has arisen from the hints and suggestions of improvement infused by them into the mental atmosphere which was breathed by the fabricators of equitable systems. but to describe the influence of equity on ownership would be to write its history down to our own days. i have alluded to it principally because several esteemed contemporary writers have thought that in the roman severance of equitable from legal property we have the clue to that difference in the conception of ownership, which apparently distinguishes the law of the middle ages from the law of the roman empire. the leading characteristic of the feudal conception is its recognition of a double proprietorship, the superior ownership of the lord of the fief co-existing with the inferior property or estate of the tenant. now, this duplication of proprietary right looks, it is urged, extremely like a generalised form of the roman distribution of rights over property into _quiritarian_ or legal, and (to use a word of late origin) _bonitarian_ or equitable. gaius himself observes upon the splitting of _dominion_ into two parts as a singularity of roman law, and expressly contrasts it with the entire or allodial ownership to which other nations were accustomed. justinian, it is true, re-consolidated dominion into one, but then it was the partially reformed system of the western empire, and not justinian's jurisprudence, with which the barbarians were in contact during so many centuries. while they remained poised on the edge of the empire, it may well be that they learned this distinction, which afterwards bore remarkable fruit. in favour of this theory, it must at all events be admitted that the element of roman law in the various bodies of barbarian custom has been very imperfectly examined. the erroneous or insufficient theories which have served to explain feudalism resemble each other in their tendency to draw off attention from this particular ingredient in its texture. the older investigators, who have been mostly followed in this country, attached an exclusive importance to the circumstances of the turbulent period during which the feudal system grew to maturity; and in later times a new source of error has been added to those already existing, in that pride of nationality which has led german writers to exaggerate the completeness of the social fabric which their forefathers had built up before their appearance in the roman world. one or two english inquirers who looked in the right quarter for the foundations of the feudal system, failed nevertheless to conduct their investigations to any satisfactory result, either from searching too exclusively for analogies in the compilations of justinian, or from confining their attention to the compendia of roman law which are found appended to some of the extant barbarian codes. but, if roman jurisprudence had any influence on the barbarous societies, it had probably produced the greatest part of its effects before the legislation of justinian, and before the preparation of these compendia. it was not the reformed and purified jurisprudence of justinian, but the undigested system which prevailed in the western empire, and which the eastern _corpus juris_ never succeeded in displacing, that i conceive to have clothed with flesh and muscle the scanty skeleton of barbarous usage. the change must be supposed to have taken place before the germanic tribes had distinctly appropriated, as conquerors, any portion of the roman dominions, and therefore long before germanic monarchs had ordered breviaries of roman law to be drawn up for the use of their roman subjects. the necessity for some such hypothesis will be felt by everybody who can appreciate the difference between archaic and developed law. rude as are the _leges barbarorum_ which remain to us, they are not rude enough to satisfy the theory of their purely barbarous origin; nor have we any reason for believing that we have received, in written records, more than a fraction of the fixed rules which were practised among themselves by the members of the conquering tribes. if we can once persuade ourselves that a considerable element of debased roman law already existed in the barbarian systems, we shall have done something to remove a grave difficulty. the german law of the conquerors and the roman law of their subjects would not have combined if they had not possessed more affinity for each other than refined jurisprudence has usually for the customs of savages. it is extremely likely that the codes of the barbarians, archaic as they seem, are only a compound of true primitive usage with half-understood roman rules, and that it was the foreign ingredient which enabled them to coalesce with a roman jurisprudence that had already receded somewhat from the comparative finish which it had acquired under the western emperors. but, though all this must be allowed, there are several considerations which render it unlikely that the feudal form of ownership was directly suggested by the roman duplication of domainial rights. the distinction between legal and equitable property strikes one as a subtlety little likely to be appreciated by barbarians; and, moreover, it can scarcely be understood unless courts of law are contemplated in regular operation. but the strongest reason against this theory is the existence in roman law of a form of property--a creation of equity, it is true--which supplies a much simpler explanation of the transition from one set of ideas to the other. this is the emphyteusis, upon which the fief of the middle ages has often been fathered, though without much knowledge of the exact share which it had in bringing feudal ownership into the world. the truth is that the emphyteusis, not probably as yet known by its greek designation, marks one stage in a current of ideas which led ultimately to feudalism. the first mention in roman history of estates larger than could be farmed by a paterfamilias, with his household of sons and slaves, occurs when we come to the holdings of the roman patricians. these great proprietors appear to have had no idea of any system of farming by free tenants. their _latifundia_ seem to have been universally cultivated by slave-gangs, under bailiffs who were themselves slaves or freedmen; and the only organisation attempted appears to have consisted in dividing the inferior slaves into small bodies, and making them the _peculium_ of the better and trustier sort, who thus acquired a kind of interest in the efficiency of their labour. this system was, however, especially disadvantageous to one class of estated proprietors, the municipalities. functionaries in italy were changed with the rapidity which often surprises us in the administration of rome herself; so that the superintendence of a large landed domain by an italian corporation must have been excessively imperfect. accordingly, we are told that with the municipalities began the practice of letting out _agri vectigules_, that is, of leasing land for a perpetuity to a free tenant, at a fixed rent, and under certain conditions. the plan was afterwards extensively imitated by individual proprietors, and the tenant, whose relation to the owner had originally been determined by his contract, was subsequently recognised by the prætor as having himself a qualified proprietorship, which in time became known as an emphyteusis. from this point the history of tenure parts into two branches. in the course of that long period during which our records of the roman empire are most incomplete, the slave-gangs of the great roman families became transformed into the _coloni_, whose origin and situation constitute one of the obscurest questions in all history. we may suspect that they were formed partly by the elevation of the slaves, and partly by the degradation of the free farmers; and that they prove the richer classes of the roman empire to have become aware of the increased value which landed property obtains when the cultivator had an interest in the produce of the land. we know that their servitude was predial; that it wanted many of the characteristics of absolute slavery, and that they acquitted their service to the landlord in rendering to him a fixed portion of the annual crop. we know further that they survived all the mutations of society in the ancient and modern worlds. though included in the lower courses of the feudal structure, they continued in many countries to render to the landlord precisely the same dues which they had paid to the roman _dominus_, and from a particular class among them, the _coloni medietarii_ who reserved half the produce for the owner, are descended the _metayer_ tenantry, who still conduct the cultivation of the soil in almost all the south of europe. on the other hand, the emphyteusis, if we may so interpret the allusions to it in the _corpus juris_, became a favourite and beneficial modification of property; and it may be conjectured that wherever free farmers existed, it was this tenure which regulated their interest in the land. the prætor, as has been said, treated the emphyteuta as a true proprietor. when ejected, he was allowed to reinstate himself by a real action, the distinctive badge of proprietory right, and he was protected from disturbance by the author of his lease so long as the _canon_, or quit-rent, was punctually paid. but at the same time it must not be supposed that the ownership of the author of the lease was either extinct or dormant. it was kept alive by a power of re-entry on nonpayment of the rent, a right of pre-emption in case of sale, and a certain control over the mode of cultivation. we have, therefore, in the emphyteusis a striking example of the double ownership which characterised feudal property, and one, moreover, which is much simpler and much more easily imitated than the juxtaposition of legal and equitable rights. the history of the roman tenure does not end, however, at this point. we have clear evidence that between the great fortresses which, disposed along the line of the rhine and danube, long secured the frontier of the empire against its barbarian neighbours, there extended a succession of strips of land, the _agri limitrophi_, which were occupied by veteran soldiers of the roman army on the terms of an emphyteusis. there was a double ownership. the roman state was landlord of the soil, but the soldiers cultivated it without disturbance so long as they held themselves ready to be called out for military service whenever the state of the border should require it. in fact, a sort of garrison-duty, under a system closely resembling that of the military colonies on the austro-turkish border, had taken the place of the quit-rent which was the service of the ordinary emphyteuta. it seems impossible to doubt that this was the precedent copied by the barbarian monarchs who founded feudalism. it had been within their view for some hundred years, and many of the veterans who guarded the border were, it is to be remembered, themselves of barbarian extraction, who probably spoke the germanic tongues. not only does the proximity of so easily followed a model explain whence the frankish and lombard sovereigns got the idea of securing the military service of their followers by granting away portions of their public domain; but it perhaps explains the tendency which immediately showed itself in the benefices to become hereditary, for an emphyteusis, though capable of being moulded to the terms of the original contract, nevertheless descended as a general rule to the heirs of the grantee. it is true that the holder of a benefice, and more recently the lord of one of those fiefs into which the benefices were transformed, appears to have owed certain services which were not likely to have been rendered by the military colonist, and were certainly not rendered by the emphyteuta. the duty of respect and gratitude to the feudal superior, the obligation to assist in endowing his daughter and equipping his son, the liability to his guardianship in minority, and many other similar incidents of tenure, must have been literally borrowed from the relations of patron and freedman under roman law, that is, of quondam-master and quondam-slave. but then it is known that the earliest beneficiaries were the personal companions of the sovereign, and it is indisputable that this position, brilliant as it seems, was at first attended by some shade of servile debasement. the person who ministered to the sovereign in his court had given up something of that absolute personal freedom which was the proudest privilege of the allodial proprietor. chapter ix the early history of contract there are few general propositions concerning the age to which we belong which seem at first sight likely to be received with readier concurrence than the assertion that the society of our day is mainly distinguished from that of preceding generations by the largeness of the sphere which is occupied in it by contract. some of the phenomena on which this proposition rests are among those most frequently singled out for notice, for comment, and for eulogy. not many of us are so unobservant as not to perceive that in innumerable cases where old law fixed a man's social position irreversibly at his birth, modern law allows him to create it for himself by convention; and indeed several of the few exceptions which remain to this rule are constantly denounced with passionate indignation. the point, for instance, which is really debated in the vigorous controversy still carried on upon the subject of negro servitude, is whether the status of the slave does not belong to bygone institutions, and whether the only relation between employer and labourer which commends itself to modern morality be not a relation determined exclusively by contract. the recognition of this difference between past ages and the present enters into the very essence of the most famous contemporary speculations. it is certain that the science of political economy, the only department of moral inquiry which has made any considerable progress in our day, would fail to correspond with the facts of life if it were not true that imperative law had abandoned the largest part of the field which it once occupied, and had left men to settle rules of conduct for themselves with a liberty never allowed to them till recently. the bias indeed of most persons trained in political economy is to consider the general truth on which their science reposes as entitled to become universal, and, when they apply it as an art, their efforts are ordinarily directed to enlarging the province of contract and to curtailing that of imperative law, except so far as law is necessary to enforce the performance of contracts. the impulse given by thinkers who are under the influence of these ideas is beginning to be very strongly felt in the western world. legislation has nearly confessed its inability to keep pace with the activity of man in discovery, in invention, and in the manipulation of accumulated wealth; and the law even of the least advanced communities tends more and more to become a mere surface-stratum having under it an ever-changing assemblage of contractual rules with which it rarely interferes except to compel compliance with a few fundamental principles or unless it be called in to punish the violation of good faith. social inquiries, so far as they depend on the consideration of legal phenomena, are in so backward a condition that we need not be surprised at not finding these truths recognised in the commonplaces which pass current concerning the progress of society. these commonplaces answer much more to our prejudices than to our convictions. the strong disinclination of most men to regard morality as advancing seems to be especially powerful when the virtues on which contract depends are in question, and many of us have almost instinctive reluctance to admitting that good faith and trust in our fellows are more widely diffused than of old, or that there is anything in contemporary manners which parallels the loyalty of the antique world. from time to time, these prepossessions are greatly strengthened by the spectacle of frauds, unheard of before the period at which they were observed, and astonishing from their complication as well as shocking from criminality. but the very character of these frauds shows clearly that, before they became possible, the moral obligations of which they are the breach must have been more than proportionately developed. it is the confidence reposed and deserved by the many which affords facilities for the bad faith of the few, so that, if colossal examples of dishonesty occur, there is no surer conclusion than that scrupulous honesty is displayed in the average of the transactions which, in the particular case, have supplied the delinquent with his opportunity. if we insist on reading the history of morality as reflected in jurisprudence, by turning our eyes not on the law of contract but on the law of crime, we must be careful that we read it aright. the only form of dishonesty treated of in the most ancient roman law is theft. at the moment at which i write, the newest chapter in the english criminal law is one which attempts to prescribe punishment for the frauds of trustees. the proper inference from this contrast is not that the primitive romans practised a higher morality than ourselves. we should rather say that, in the interval between their days and ours, morality has advanced from a very rude to a highly refined conception--from viewing the rights of property as exclusively sacred, to looking upon the rights growing out of the mere unilateral reposal of confidence as entitled to the protection of the penal law. the definite theories of jurists are scarcely nearer the truth in this point than the opinions of the multitude. to begin with the views of the roman lawyers, we find them inconsistent with the true history of moral and legal progress. one class of contracts, in which the plighted faith of the contracting parties was the only material ingredient, they specifically denominated contracts _juris gentium_, and though these contracts were undoubtedly the latest born into the roman system, the expression employed implies, if a definite meaning be extracted from it, that they were more ancient than certain other forms of engagement treated of in roman law, in which the neglect of a mere technical formality was as fatal to the obligation as misunderstanding or deceit. but then the antiquity to which they were referred was vague, shadowy, and only capable of being understood through the present; nor was it until the language of the roman lawyers became the language of an age which had lost the key to their mode of thought that a "contract of the law of nations" came to be distinctly looked upon as a contract known to man in a state of nature. rousseau adopted both the juridical and the popular error. in the dissertation on the effects of art and science upon morals, the first of his works which attracted attention and the one in which he states most unreservedly the opinions which made him the founder of a sect, the veracity and good faith attributed to the ancient persians are repeatedly pointed out as traits of primitive innocence which have been gradually obliterated by civilisation; and at a later period he found a basis for all his speculations in the doctrine of an original social contract. the social contract or compact is the most systematic form which has ever been assumed by the error we are discussing. it is a theory which, though nursed into importance by political passions, derived all its sap from the speculations of lawyers. true it certainly is that the famous englishmen, for whom it had first had attraction, valued it chiefly for its political serviceableness, but, as i shall presently attempt to explain, they would never have arrived at it, if politicians had not long conducted their controversies in legal phraseology. nor were the english authors of the theory blind to that speculative amplitude which recommended it so strongly to the frenchmen who inherited it from them. their writings show they perceived that it could be made to account for all social, quite as well as for all political phenomena. they had observed the fact, already striking in their day, that of the positive rules obeyed by men, the greater part were created by contract, the lesser by imperative law. but they were ignorant or careless of the historical relation of these two constituents of jurisprudence. it was for the purpose, therefore, of gratifying their speculative tastes by attributing all jurisprudence to a uniform source, as much as with the view of eluding the doctrines which claimed a divine parentage for imperative law, that they devised the theory that all law had its origin in contract. in another stage of thought, they would have been satisfied to leave their theory in the condition of an ingenious hypothesis or a convenient verbal formula. but that age was under the dominion of legal superstitions. the state of nature had been talked about till it had ceased to be regarded as paradoxical, and hence it seemed easy to give a fallacious reality and definiteness to the contractual origin of law by insisting on the social compact as a historical fact. our own generation has got rid of these erroneous juridical theories, partly by outgrowing the intellectual state to which they belong, and partly by almost ceasing to theorise on such subjects altogether. the favourite occupation of active minds at the present moment, and the one which answers to the speculations of our forefathers on the origin of the social state, is the analysis of society as it exists and moves before our eyes; but, through omitting to call in the assistance of history, this analysis too often degenerates into an idle exercise of curiosity, and is especially apt to incapacitate the inquirer for comprehending states of society which differ considerably from that to which he is accustomed. the mistake of judging the men of other periods by the morality of our own day has its parallel in the mistake of supposing that every wheel and bolt in the modern social machine had its counterpart in more rudimentary societies. such impressions ramify very widely, and masque themselves very subtly, in historical works written in the modern fashion; but i find the trace of their presence in the domain of jurisprudence in the praise which is frequently bestowed on the little apologue of montesquieu concerning the troglodytes, inserted in the _lettres persanes_. the troglodytes were a people who systematically violated their contracts, and so perished utterly. if the story bears the moral which its author intended, and is employed to expose an anti-social heresy by which this century and the last have been threatened, it is most unexceptionable; but if the inference be obtained from it that society could not possibly hold together without attaching a sacredness to promises and agreements which should be on something like a par with the respect that is paid to them by a mature civilisation, it involves an error so grave as to be fatal to all sound understanding of legal history. the fact is that the troglodytes have flourished and founded powerful states with very small attention to the obligations of contract. the point which before all others has to be apprehended in the constitution of primitive societies is that the individual creates for himself few or no rights, and few or no duties. the rules which he obeys are derived first from the station into which he is born, and next from the imperative commands addressed to him by the chief of the household of which he forms part. such a system leaves the very smallest room for contract. the members of the same family (for so we may interpret the evidence) are wholly incapable of contracting with each other, and the family is entitled to disregard the engagements by which any one of its subordinate members has attempted to bind it. family, it is true, may contract with family, chieftain with chieftain, but the transaction is one of the same nature, and encumbered by as many formalities, as the alienation of property, and the disregard of one iota of the performance is fatal to the obligation. the positive duty resulting from one man's reliance on the word of another is among the slowest conquests of advancing civilisation. neither ancient law nor any other source of evidence discloses to us society entirely destitute of the conception of contract. but the conception, when it first shows itself, is obviously rudimentary. no trustworthy primitive record can be read without perceiving that the habit of mind which induces us to make good a promise is as yet imperfectly developed, and that acts of flagrant perfidy are often mentioned without blame and sometimes described with approbation. in the homeric literature, for instance, the deceitful cunning of ulysses appears as a virtue of the same rank with the prudence of nestor, the constancy of hector, and the gallantry of achilles. ancient law is still more suggestive of the distance which separates the crude form of contract from its maturity. at first, nothing is seen like the interposition of law to compel the performance of a promise. that which the law arms with its sanctions is not a promise, but a promise accompanied with a solemn ceremonial. not only are formalities of equal importance with the promise itself, but they are, if anything, of greater importance; for that delicate analysis which mature jurisprudence applies to the conditions of mind under which a particular verbal assent is given appears, in ancient law, to be transferred to the words and gestures of the accompanying performance. no pledge is enforced if a single form be omitted or misplaced, but, on the other hand, if the forms can be shown to have been accurately proceeded with, it is of no avail to plead that the promise was made under duress or deception. the transmutation of this ancient view into the familiar notion of a contract is plainly seen in the history of jurisprudence. first one or two steps in the ceremonial are dispensed with; then the others are simplified or permitted to be neglected on certain conditions; lastly, a few specific contracts are separated from the rest and allowed to be entered into without form, the selected contracts being those on which the activity and energy of social intercourse depends. slowly, but most distinctly, the mental engagement isolates itself amid the technicalities, and gradually becomes the sole ingredient on which the interest of the jurisconsult is concentrated. such a mental engagement, signified through external acts, the romans called a pact or convention; and when the convention has once been conceived as the nucleus of a contract, it soon becomes the tendency of advancing jurisprudence to break away the external shell of form and ceremony. forms are thenceforward only retained so far as they are guarantees of authenticity, and securities for caution and deliberation. the idea of a contract is fully developed, or, to employ the roman phrase, contracts are absorbed in pacts. the history of this course of change in roman law is exceedingly instructive. at the earliest dawn of the jurisprudence, the term in use for a contract was one which is very familiar to the students of historical latinity. it was _nexum_, and the parties to the contract were said to be _nexi_, expressions which must be carefully attended to on account of the singular durableness of the metaphor on which they are founded. the notion that persons under a contractual engagement are connected together by a strong _bond_ or _chain_, continued till the last to influence the roman jurisprudence of contract; and flowing thence it has mixed itself with modern ideas. what then was involved in this nexum or bond? a definition which has descended to us from one of the latin antiquarians describes _nexum_ as _omne quod geritur per æs et libram_, "every transaction with the copper and the balance," and these words have occasioned a good deal of perplexity. the copper and the balance are the well-known accompaniments of the mancipation, the ancient solemnity described in a former chapter, by which the right of ownership in the highest form of roman property was transferred from one person to another. mancipation was a _conveyance_, and hence has arisen the difficulty, for the definition thus cited appears to confound contracts and conveyances, which in the philosophy of jurisprudence are not simply kept apart, but are actually opposed to each other. the _jus in re_, right _in rem_, right "availing against all the world," or proprietary right, is sharply distinguished by the analyst of mature jurisprudence from the _jus ad rem_, right _in personam_, right "availing a single individual or group," or obligation. now conveyances transfer proprietary rights, contracts create obligations--how then can the two be included under the same name or same general conception? this, like many similar embarrassments, has been occasioned by the error of ascribing to the mental condition of an unformed society a faculty which pre-eminently belongs to an advanced stage of intellectual development, the faculty of distinguishing in speculation ideas which are blended in practice. we have indications not to be mistaken of a state of social affairs in which conveyances and contracts were practically confounded; nor did the discrepance of the conceptions become perceptible till men had begun to adopt a distinct practice in contracting and conveying. it may here be observed that we know enough of ancient roman law to give some idea of the mode of transformation followed by legal conceptions and by legal phraseology in the infancy of jurisprudence. the change which they undergo appears to be a change from general to special; or, as we might otherwise express it, the ancient conceptions and the ancient terms are subjected to a process of gradual specialisation. an ancient legal conception corresponds not to one but to several modern conceptions. an ancient technical expression serves to indicate a variety of things which in modern law have separate names allotted to them. if however we take up the history of jurisprudence at the next stage, we find that the subordinate conceptions have gradually disengaged themselves and that the old general names are giving way to special appellations. the old general conception is not obliterated, but it has ceased to cover more than one or a few of the notions which it first included. so too the old technical name remains, but it discharges only one of the functions which it once performed. we may exemplify this phenomenon in various ways. patriarchal power of all sorts appears, for instance, to have been once conceived as identical in character, and it was doubtless distinguished by one name. the power exercised by the ancestor was the same whether it was exercised over the family or the material property--over flocks, herds, slaves, children, or wife. we cannot be absolutely certain of its old roman name, but there is very strong reason for believing, from the number of expressions indicating shades of the notion of _power_ into which the word _manus_ enters, that the ancient general term was _manus_. but, when roman law has advanced a little, both the name and the idea have become specialised. power is discriminated, both in word and in conception, according to the object over which it is exerted. exercised over material commodities or slaves, it has become _dominium_--over children, it is _potestas_--over free persons whose services have been made away to another by their own ancestor, it is _mancipium_--over a wife, it is still _manus_. the old word, it will be perceived, has not altogether fallen into desuetude, but is confined to one very special exercise of the authority it had formerly denoted. this example will enable us to comprehend the nature of the historical alliance between contracts and conveyances. there seems to have been one solemn ceremonial at first for all solemn transactions, and its name at rome appears to have been _nexum_. precisely the same forms which were in use when a conveyance of property was effected seem to have been employed in the making of a contract. but we have not very far to move onwards before we come to a period at which the notion of a contract has disengaged itself from the notion of a conveyance. a double change has thus taken place. the transaction "with the copper and the balance," when intended to have for its office the transfer of property, is known by the new and special name of mancipation. the ancient nexum still designates the same ceremony, but only when it is employed for the special purpose of solemnising a contract. when two or three legal conceptions are spoken of as anciently blended in one, it is not intended to imply that some one of the included notions may not be older than the others, or, when those others have been formed, may not greatly predominate over and take precedence over them. the reason why one legal conception continues so long to cover several conceptions, and one technical phrase to do instead of several, is doubtless that practical changes are accomplished in the law of primitive societies long before men see occasion to notice or name them. though i have said that patriarchal power was not at first distinguished according to the objects over which it was exercised, i feel sure that power over children was the root of the old conception of power; and i cannot doubt that the earliest use of the nexum, and the one primarily regarded by those who resorted to it, was to give proper solemnity to the alienation of property. it is likely that a very slight perversion of the nexum from its original functions first gave rise to its employment in contracts, and that the very slightness of the change long prevented its being appreciated or noticed. the old name remained because men had not become conscious that they wanted a new one; the old notion clung to the mind because nobody had seen reason to be at the pains of examining it. we have had the process clearly exemplified in the history of testaments. a will was at first a simple conveyance of property. it was only the enormous practical difference that gradually showed itself between this particular conveyance and all others which caused it to be regarded separately, and even as it was, centuries elapsed before the ameliorators of law cleared away the useless encumbrance of the nominal mancipation, and consented to care for nothing in the will but the expressed intentions of the testator. it is unfortunate that we cannot track the early history of contracts with the same absolute confidence as the early history of wills, but we are not quite without hints that contracts first showed themselves through the _nexum_ being put to a new use and afterwards obtained recognition as distinct transactions through the important practical consequences of the experiment. there is some, but not very violent, conjecture in the following delineation of the process. let us conceive a sale for ready money as the normal type of the nexum. the seller brought the property of which he intended to dispose--a slave, for example--the purchaser attended with the rough ingots of copper which served for money--and an indispensable assistant, the _libripens_, presented himself with a pair of scales. the slave with certain fixed formalities was handed over to the vendee--the copper was weighed by the _libripens_ and passed to the vendor. so long as the business lasted it was a _nexum_, and the parties were _nexi_; but the moment it was completed, the _nexum_ ended, and the vendor and purchaser ceased to bear the name derived from their momentary relation. but now, let us move a step onward in commercial history. suppose the slave transferred, but the money not paid. in _that_ case, the _nexum_ is finished, so far as the seller is concerned, and when he has once handed over his property, he is no longer _nexus_; but, in regard to the purchaser, the _nexum_ continues. the transaction, as to his part of it, is incomplete, and he is still considered to be _nexus_. it follows, therefore, that the same term described the conveyance by which the right of property was transmitted, and the personal obligation of the debtor for the unpaid purchase-money. we may still go forward, and picture to ourselves a proceeding wholly formal, in which _nothing_ is handed over and _nothing_ paid; we are brought at once to a transaction indicative of much higher commercial activity, an _executory contract of sale_. if it be true that, both in the popular and in the professional view, a _contract_ was long regarded as an _incomplete conveyance_, the truth has importance for many reasons. the speculations of the last century concerning mankind in a state of nature, are not unfairly summed up in the doctrine that "in the primitive society property was nothing, and obligation everything;" and it will now be seen that, if the proposition were reversed, it would be nearer the reality. on the other hand, considered historically, the primitive association of conveyances and contracts explains something which often strikes the scholar and jurist as singularly enigmatical, i mean the extraordinary and uniform severity of very ancient systems of law to _debtors_, and the extravagant powers which they lodge with _creditors_. when once we understand that the _nexum_ was artificially prolonged to give time to the debtor, we can better comprehend his position in the eye of the public and of the law. his indebtedness was doubtless regarded as an anomaly, and suspense of payment in general as an artifice and a distortion of strict rule. the person who had duly consummated his part in the transaction must, on the contrary, have stood in peculiar favour; and nothing would seem more natural than to arm him with stringent facilities for enforcing the completion of a proceeding which, of strict right, ought never to have been extended or deferred. nexum, therefore, which originally signified a conveyance of property, came insensibly to denote a contract also, and ultimately so constant became the association between this word and the notion of a contract, that a special term, mancipium or mancipatio, had to be used for the purpose of designating the true nexum or transaction in which the property was really transferred. contracts are therefore now severed from conveyances, and the first stage in their history is accomplished, but still they are far enough from that epoch of their development when the promise of the contractor has a higher sacredness than the formalities with which it is coupled. in attempting to indicate the character of the changes passed through in this interval, it is necessary to trespass a little on a subject which lies properly beyond the range of these pages, the analysis of agreement effected by the roman jurisconsults. of this analysis, the most beautiful monument of their sagacity, i need not say more than that it is based on the theoretical separation of the obligation from the convention or pact. bentham and mr. austin have laid down that the "two main essentials of a contract are these: first, a signification by the promising party of his _intention_ to do the acts or to observe the forbearances which he promises to do or to observe. secondly, a signification by the promisee that he _expects_ the promising party will fulfil the proffered promise." this is virtually identical with the doctrine of the roman lawyers, but then, in their view, the result of these "significations" was not a contract, but a convention or pact. a pact was the utmost product of the engagements of individuals agreeing among themselves, and it distinctly fell short of a contract. whether it ultimately became a contract depended on the question whether the law annexed an obligation to it. a contract was a pact (or convention) _plus_ an obligation. so long as the pact remained unclothed with the obligation, it was called _nude_ or _naked_. what was an obligation? it is defined by the roman lawyers as "juris vinculum, quo necessitate adstringimur alicujus solvendæ rei." this definition connects the obligation with the nexum through the common metaphor on which they are founded, and shows us with much clearness the pedigree of a peculiar conception. the obligation is the "bond" or "chain" with which the law joins together persons or groups of persons, in consequence of certain voluntary acts. the acts which have the effect of attracting an obligation are chiefly those classed under the heads of contract and delict, of agreement and wrong; but a variety of other acts have a similar consequence which are not capable of being comprised in an exact classification. it is to be remarked, however, that the act does not draw to itself the obligation in consequence of any moral necessity; it is the law which annexes it in the plenitude of its power, a point the more necessary to be noted, because a different doctrine has sometimes been propounded by modern interpreters of the civil law who had moral or metaphysical theories of their own to support. the image of a _vinculum juris_ colours and pervades every part of the roman law of contract and delict. the law bound the parties together, and the _chain_ could only be undone by the process called _solutio_, an expression still figurative, to which our word "payment" is only occasionally and incidentally equivalent. the consistency with which the figurative image was allowed to present itself, explains an otherwise puzzling peculiarity of roman legal phraseology, the fact that "obligation" signified rights as well as duties, the right, for example, to have a debt paid as well as the duty of paying it. the romans kept in fact the entire picture of the "legal chain" before their eyes, and regarded one end of it no more and no less than the other. in the developed roman law, the convention, as soon as it was completed, was, in almost all cases, at once crowned with the obligation, and so became a contract; and this was the result to which contract-law was surely tending. but for the purpose of this inquiry, we must attend particularly to the intermediate stage--that in which something more than a perfect agreement was required to attract the obligation. this epoch is synchronous with the period at which the famous roman classification of contracts into four sorts--the verbal, the literal, the real, and the consensual--had come into use, and during which these four orders of contracts constituted the only descriptions of engagement which the law would enforce. the meaning of the fourfold distribution is readily understood as soon as we apprehend the theory which severed the obligation from the convention. each class of contracts was in fact named from certain formalities which were required over and above the mere agreement of the contracting parties. in the verbal contract, as soon as the convention was effected, a form of words had to be gone through before the vinculum juris was attached to it. in the literal contract, an entry in a ledger or table-book had the effect of clothing the convention with the obligation, and the same result followed, in the case of the real contract, from the delivery of the res or thing which was the subject of the preliminary engagement. the contracting parties came, in short, to an understanding in each case; but, if they went no further, they were not _obliged_ to one another, and could not compel performance or ask redress for a breach of faith. but let them comply with certain prescribed formalities, and the contract was immediately complete, taking its name from the particular form which it had suited them to adopt. the exceptions to this practice will be noticed presently. i have enumerated the four contracts in their historical order, which order, however, the roman institutional writers did not invariably follow. there can be no doubt that the verbal contract was the most ancient of the four, and that it is the eldest known descendant of the primitive nexum. several species of verbal contract were anciently in use, but the most important of all, and the only one treated of by our authorities, was effected by means of a _stipulation_, that is, a question and answer; a question addressed by the person who exacted the promise, and an answer given by the person who made it. this question and answer constituted the additional ingredient which, as i have just explained, was demanded by the primitive notion over and above the mere agreement of the persons interested. they formed the agency by which the obligation was annexed. the old nexum has now bequeathed to maturer jurisprudence first of all the conception of a chain uniting the contracting parties, and this has become the obligation. it has further transmitted the notion of a ceremonial accompanying and consecrating the engagement, and this ceremonial has been transmuted into the stipulation. the conversion of the solemn conveyance, which was the prominent feature of the original nexum, into a mere question and answer, would be more of a mystery than it is if we had not the analogous history of roman testaments to enlighten us. looking to that history, we can understand how the formal conveyance was first separated from the part of the proceeding which had immediate reference to the business in hand, and how afterwards it was omitted altogether. as then the question and answer of the stipulation were unquestionably the nexum in a simplified shape, we are prepared to find that they long partook of the nature of a technical form. it would be a mistake to consider them as exclusively recommending themselves to the older roman lawyers through their usefulness in furnishing persons meditating an agreement with an opportunity for consideration and reflection. it is not to be disputed that they had a value of this kind, which was gradually recognised; but there is proof that their function in respect to contracts was at first formal and ceremonial in the statement of our authorities, that not every question and answer was of old sufficient to constitute a stipulation, but only a question and answer couched in technical phraseology specially appropriated to the particular occasion. but although it is essential for the proper appreciation of the history of contract-law that the stipulation should be understood to have been looked upon as a solemn form before it was recognised as a useful security, it would be wrong on the other hand to shut our eyes to its real usefulness. the verbal contract, though it had lost much of its ancient importance, survived to the latest period of roman jurisprudence; and we may take it for granted that no institution of roman law had so extended a longevity unless it served some practical advantage. i observe in an english writer some expressions of surprise that the romans even of the earliest times were content with so meagre a protection against haste and irreflection. but on examining the stipulation closely, and remembering that we have to do with a state of society in which written evidence was not easily procurable, i think we must admit that this question and answer, had it been expressly devised to answer the purpose which it served, would have been justly designated a highly ingenious expedient. it was the _promisee_ who, in the character of stipulator, put all the terms of the contract into the form of a question, and the answer was given by the _promisor_. "do you promise that you will deliver me such and such a slave, at such and such a place, on such and such a day?" "i do promise." now, if we reflect for a moment, we shall see that this obligation to put the promise interrogatively inverts the natural position of the parties, and, by effectually breaking the tenor of the conversation, prevents the attention from gliding over a dangerous pledge. with us, a verbal promise is, generally speaking, to be gathered exclusively from the words of the promisor. in old roman law, another step was absolutely required; it was necessary for the promisee, after the agreement had been made, to sum up all its terms in a solemn interrogation; and it was of this interrogation, of course, and of the assent to it, that proof had to be given at the trial--_not_ of the promise, which was not in itself binding. how great a difference this seemingly insignificant peculiarity may make in the phraseology of contract-law is speedily realised by the beginner in roman jurisprudence, one of whose first stumbling-blocks is almost universally created by it. when we in english have occasion, in mentioning a contract, to connect it for convenience' sake with one of the parties--for example, if we wished to speak generally of a contractor--it is always the _promisor_ at whom our words are pointing. but the general language of roman law takes a different turn; it always regards the contract, if we may so speak, from the point of view of the _promisee_; in speaking of a party to a contract, it is always the stipulator, the person who asks the question, who is primarily alluded to. but the serviceableness of the stipulation is most vividly illustrated by referring to the actual examples in the pages of the latin comic dramatists. if the entire scenes are read down in which these passages occur (ex. gra. plautus, _pseudolus_, act i. sc. i; act iv. sc. 6; _trinummus_, act v. sc. 2), it will be perceived how effectually the attention of the person meditating the promise must have been arrested by the question, and how ample was the opportunity for withdrawal from an improvident undertaking. in the literal or written contract, the formal act, by which an obligation was superinduced on the convention, was an entry of the sum due, where it could be specifically ascertained, on the debit side of a ledger. the explanation of this contract turns on a point of roman domestic manners, the systematic character and exceeding regularity of bookkeeping in ancient times. there are several minor difficulties of old roman law, as, for example, the nature of the slave's peculium, which are only cleared up when we recollect that a roman household consisted of a number of persons strictly accountable to its head, and that every single item of domestic receipt and expenditure, after being entered in waste books, was transferred at stated periods to a general household ledger. there are some obscurities, however, in the descriptions we have received of the literal contract, the fact being that the habit of keeping books ceased to be universal in later times, and the expression "literal contract" came to signify a form of engagement entirely different from that originally understood. we are not, therefore, in a position to say, with respect to the primitive literal contract, whether the obligation was created by a simple entry on the part of the creditor, or whether the consent of the debtor or a corresponding entry in his own books was necessary to give it legal effect. the essential point is however established that, in the case of this contract, all formalities were dispensed with on a condition being complied with. this is another step downwards in the history of contract-law. the contract which stands next in historical succession, the real contract, shows a great advance in ethical conceptions. whenever any agreement had for its object the delivery of a specific thing--and this is the case with the large majority of simple engagements--the obligation was drawn down as soon as the delivery had actually taken place. such a result must have involved a serious innovation on the oldest ideas of contract; for doubtless, in the primitive times, when a contracting party had neglected to clothe his agreement in a stipulation, nothing done in pursuance of the agreement would be recognised by the law. a person who had paid over money on loan would be unable to sue for its repayment unless he had formally _stipulated_ for it. but, in the real contract, performance on one side is allowed to impose a legal duty on the other--evidently on ethical grounds. for the first time then moral considerations appear as an ingredient in contract-law, and the real contract differs from its two predecessors in being founded on these, rather than on respect for technical forms or on deference to roman domestic habits. we now reach the fourth class, or consensual contracts, the most interesting and important of all. four specified contracts were distinguished by this name: mandatum, _i.e._ commission or agency; societas or partnership; emtio venditio or sale; and locatio conductio or letting and hiring. a few pages ago, after stating that a contract consisted of a pact or convention to which an obligation had been superadded, i spoke of certain acts or formalities by which the law permitted the obligation to be attracted to the pact. i used this language on account of the advantage of a general expression, but it is not strictly correct unless it be understood to include the negative as well as the positive. for, in truth, the peculiarity of these consensual contracts is that _no_ formalities, are required to create them out of the pact. much that is indefensible, and much more that is obscure, has been written about the consensual contracts, and it has even been asserted that in them the _consent_ of the parties is more emphatically given than in any other species of agreement. but the term consensual merely indicates that the obligation is here annexed at once to the _consensus_. the consensus, or mutual assent of the parties, is the final and crowning ingredient in the convention, and it is the special characteristic of agreements falling under one of the four heads of sale, partnership, agency, and hiring, that, as soon as the assent of the parties has supplied this ingredient, there is _at once_ a contract. the consensus draws with it the obligation, performing, in transactions of the sort specified, the exact functions which are discharged, in the other contracts, by the _res_ or thing, by the _verba_ stipulationis, and by the _literæ_ or written entry in a ledger. consensual is therefore a term which does not involve the slightest anomaly, but is exactly analogous to real, verbal, and literal. in the intercourse of life the commonest and most important of all the contracts are unquestionably the four styled consensual. the larger part of the collective existence of every community is consumed in transactions of buying and selling, of letting and hiring, of alliances between men for purposes of business, of delegation of business from one man to another; and this is no doubt the consideration which led the romans, as it has led most societies, to relieve these transactions from technical incumbrance, to abstain as much as possible from clogging the most efficient springs of social movement. such motives were not of course confined to rome, and the commerce of the romans with their neighbours must have given them abundant opportunities for observing that the contracts before us tended everywhere to become _consensual_, obligatory on the mere signification of mutual assent. hence, following their usual practice, they distinguished these contracts as contracts _juris gentium_. yet i do not think that they were so named at a very early period. the first notions of a jus gentium may have been deposited in the minds of the roman lawyers long before the appointment of a prætor peregrinus, but it would only be through extensive and regular trade that they would be familiarised with the contractual system of other italian communities, and such a trade would scarcely attain considerable proportions before italy had been thoroughly pacified, and the supremacy of rome conclusively assured. although, however, there is strong probability that the consensual contracts were the latest-born into the roman system, and though it is likely that the qualification, _juris gentium_, stamps the recency of their origin, yet this very expression, which attributes them to the "law of nations," has in modern times produced the notion of their extreme antiquity. for, when the "law of nations" had been converted into the "law of nature," it seemed to be implied that the consensual contracts were the type of the agreements most congenial to the natural state; and hence arose the singular belief that the younger the civilisation, the simpler must be its forms of contract. the consensual contracts, it will be observed, were extremely limited in number. but it cannot be doubted that they constituted the stage in the history of contract-law from which all modern conceptions of contract took their start. the motion of the will which constitutes agreement was now completely insulated, and became the subject of separate contemplation; forms were entirely eliminated from the notion of contract, and external acts were only regarded as symbols of the internal act of volition. the consensual contracts had, moreover, been classed in the jus gentium, and it was not long before this classification drew with it the inference that they were the species of agreement which represented the engagements approved of by nature and included in her code. this point once reached, we are prepared for several celebrated doctrines and distinctions of the roman lawyers. one of them is the distinction between natural and civil obligations. when a person of full intellectual maturity had deliberately bound himself by an engagement, he was said to be under a _natural obligation_, even though he had omitted some necessary formality, and even though through some technical impediment he was devoid of the formal capacity for making a valid contract. the law (and this is what the distinction implies) would not enforce the obligation, but it did not absolutely refuse to recognise it; and _natural obligations_ differed in many respects from obligations which were merely null and void, more particularly in the circumstance that they could be civilly confirmed, if the capacity for contract were subsequently acquired. another very peculiar doctrine of the jurisconsults could not have had its origin earlier than the period at which the convention was severed from the technical ingredients of contract. they taught that though nothing but a contract could be the foundation of an _action_, a mere pact or convention could be the basis of a _plea_. it followed from this, that though nobody could sue upon an agreement which he had not taken the precaution to mature into a contract by complying with the proper forms, nevertheless a claim arising out of a valid contract could be rebutted by proving a counter-agreement which had never got beyond the state of a simple convention. an action for the recovery of a debt could be met by showing a mere informal agreement to waive or postpone the payment. the doctrine just stated indicates the hesitation of the prætors in making their advances towards the greatest of their innovations. their theory of natural law must have led them to look with especial favour on the consensual contracts and on those pacts or conventions of which the consensual contracts were only particular instances; but they did not at once venture on extending to all conventions the liberty of the consensual contracts. they took advantage of that special superintendence over procedure which had been confided to them since the first beginnings of roman law, and, while they still declined to permit a suit to be launched which was not based on a formal contract, they gave full play to their new theory of agreement in directing the ulterior stages of the proceeding. but, when they had proceeded thus far, it was inevitable that they should proceed farther. the revolution of the ancient law of contract was consummated when the prætor of some one year announced in his edict that he would grant equitable actions upon pacts which had never been matured at all into contracts, provided only that the pacts in question had been founded on a consideration (_causa_). pacts of this sort are always enforced under the advanced roman jurisprudence. the principle is merely the principle of the consensual contract carried to its proper consequence; and, in fact, if the technical language of the romans had been as plastic as their legal theories, these pacts enforced by the prætor would have been styled new contracts, new consensual contracts. legal phraseology is, however, the part of the law which is the last to alter, and the pacts equitably enforced continued to be designated simply prætorian pacts. it will be remarked that unless there were consideration for the pact, it would continue _nude_ so far as the new jurisprudence was concerned; in order to give it effect, it would be necessary to convert it by a stipulation into a verbal contract. the extreme importance of this history of contract, as a safeguard against almost innumerable delusions, must be my justification for discussing it at so considerable a length. it gives a complete account of the march of ideas from one great landmark of jurisprudence to another. we begin with nexum, in which a contract and a conveyance are blended, and in which the formalities which accompany the agreement are even more important than the agreement itself. from the nexum we pass to the stipulation, which is a simplified form of the older ceremonial. the literal contract comes next, and here all formalities are waived, if proof of the agreement can be supplied from the rigid observances of a roman household. in the real contract a moral duty is for the first time recognised, and persons who have joined or acquiesced in the partial performance of an engagement are forbidden to repudiate it on account of defects in form. lastly, the consensual contracts emerge, in which the mental attitude of the contractors is solely regarded, and external circumstances have no title to notice except as evidence of the inward undertaking. it is of course uncertain how far this progress of roman ideas from a gross to a refined conception exemplifies the necessary progress of human thought on the subject of contract. the contract-law of all other ancient societies but the roman is either too scanty to furnish information, or else is entirely lost; and modern jurisprudence is so thoroughly leavened with the roman notions that it furnishes us with no contrasts or parallels from which instruction can be gleaned. from the absence, however, of everything violent, marvellous, or unintelligible in the changes i have described, it may be reasonably believed that the history of ancient roman contracts is, up to a certain point, typical of the history of this class of legal conceptions in other ancient societies. but it is only up to a certain point that the progress of roman law can be taken to represent the progress of other systems of jurisprudence. the theory of natural law is exclusively roman. the notion of the _vinculum juris_, so far as my knowledge extends, is exclusively roman. the many peculiarities of the mature roman law of contract and delict which are traceable to these two ideas, whether singly or in combination, are therefore among the exclusive products of one particular society. these later legal conceptions are important, not because they typify the necessary results of advancing thought under all conditions, but because they have exercised perfectly enormous influence on the intellectual diathesis of the modern world. i know nothing more wonderful than the variety of sciences to which roman law, roman contract-law more particularly, has contributed modes of thought, courses of reasoning, and a technical language. of the subjects which have whetted the intellectual appetite of the moderns, there is scarcely one, except physics, which has not been filtered through roman jurisprudence. the science of pure metaphysics had, indeed, rather a greek than a roman parentage, but politics, moral philosophy, and even theology, found in roman law not only a vehicle of expression, but a nidus in which some of their profoundest inquiries were nourished into maturity. for the purpose of accounting for this phenomenon, it is not absolutely necessary to discuss the mysterious relation between words and ideas, or to explain how it is that the human mind has never grappled with any subject of thought, unless it has been provided beforehand with a proper store of language and with an apparatus of appropriate logical methods. it is enough to remark, that, when the philosophical interests of the eastern and western worlds were separated, the founders of western thought belonged to a society which spoke latin and reflected in latin. but in the western provinces the only language which retained sufficient precision for philosophical purposes was the language of roman law, which by a singular fortune had preserved nearly all the purity of the augustan age, while vernacular latin was degenerating into a dialect of portentous barbarism. and if roman jurisprudence supplied the only means of exactness in speech, still more emphatically did it furnish the only means of exactness, subtlety, or depth in thought. for at least three centuries, philosophy and science were without a home in the west; and though metaphysics and metaphysical theology were engrossing the mental energies of multitudes of roman subjects, the phraseology employed in these ardent inquiries was exclusively greek, and their theatre was the eastern half of the empire. sometimes, indeed, the conclusions of the eastern disputants became so important that every man's assent to them, or dissent from them, had to be recorded, and then the west was introduced to the results of eastern controversy, which it generally acquiesced in without interest and without resistance. meanwhile, one department of inquiry, difficult enough for the most laborious, deep enough for the most subtle, delicate enough for the most refined, had never lost its attractions for the educated classes of the western provinces. to the cultivated citizen of africa, of spain, of gaul and of northern italy, it was jurisprudence, and jurisprudence only, which stood in the place of poetry and history, of philosophy and science. so far then from there being anything mysterious in the palpably legal complexion of the earliest efforts of western thought it would rather be astonishing if it had assumed any other hue. i can only express my surprise at the scantiness of the attention which has been given to the difference between western ideas and eastern, between western theology and eastern, caused by the presence of a new ingredient. it is precisely because the influence of jurisprudence begins to be powerful that the foundation of constantinople and the subsequent separation of the western empire from the eastern, are epochs in philosophical history. but continental thinkers are doubtless less capable of appreciating the importance of this crisis by the very intimacy with which notions derived from roman law are mingled up with every-day ideas. englishmen, on the other hand, are blind to it through the monstrous ignorance to which they condemn themselves of the most plentiful source of the stream of modern knowledge, of the one intellectual result of the roman civilisation. at the same time, an englishman, who will be at the pains to familiarise himself with the classical roman law, is perhaps, from the very slightness of the interest which his countrymen have hitherto taken in the subject, a better judge than a frenchman or a german of the value of the assertions i have ventured to make. anybody who knows what roman jurisprudence is, as actually practised by the romans, and who will observe in what characteristics the earliest western theology and philosophy differ from the phases of thought which preceded them, may be safely left to pronounce what was the new element which had begun to pervade and govern speculation. the part of roman law which has had most extensive influence on foreign subjects of inquiry has been the law of obligation, or what comes nearly to the same thing, of contract and delict. the romans themselves were not unaware of the offices which the copious and malleable terminology belonging to this part of their system might be made to discharge, and this is proved by their employment of the peculiar adjunct _quasi_ in such expressions as quasi-contract and quasi-delict. "quasi," so used, is exclusively a term of classification. it has been usual with english critics to identify the quasi-contracts with _implied_ contracts, but this is an error, for implied contracts are true contracts, which quasi-contracts are not. in implied contracts, acts and circumstances are the symbols of the same ingredients which are symbolised, in express contracts, by words; and whether a man employs one set of symbols or the other must be a matter of indifference so far as concerns the theory of agreement. but a quasi-contract is not a contract at all. the commonest sample of the class is the relation subsisting between two persons one of whom has paid money to the other through mistake. the law, consulting the interests of morality, imposes an obligation on the receiver to refund, but the very nature of the transaction indicates that it is not a contract, inasmuch as the convention, the most essential ingredient of contract, is wanting. this word "quasi," prefixed to a term of roman law, implies that the conception to which it serves as an index is connected with the conception with which the comparison is instituted by a strong superficial analogy or resemblance. it does not denote that the two conceptions are the same or that they belong to the same genus. on the contrary, it negatives the notion of an identity between them; but it points out that they are sufficiently similar for one to be classed as the sequel to the other, and that the phraseology taken from one department of law may be transferred to the other and employed without violent straining in the statement of rules which would otherwise be imperfectly expressed. it has been shrewdly remarked, that the confusion between implied contracts, which are true contracts, and quasi contracts, which are not contracts at all, has much in common with the famous error which attributed political rights and duties to an original compact between the governed and the governor. long before this theory had clothed itself in definite shape, the phraseology of roman contract-law had been largely drawn upon to describe that reciprocity of rights and duties which men had always conceived as existing between sovereigns and subjects. while the world was full of maxims setting forth with the utmost positiveness the claims of kings to implicit obedience--maxims which pretended to have had their origin in the new testament, but which were really derived from indelible recollections of the cæsarian despotism--the consciousness of correlative rights possessed by the governed would have been entirely without the means of expression if the roman law of obligation had not supplied a language capable of shadowing forth an idea which was as yet imperfectly developed. the antagonism between the privileges of kings and their duties to their subjects was never, i believe, lost sight of since western history began, but it had interest for few except speculative writers so long as feudalism continued in vigour, for feudalism effectually controlled by express customs the exorbitant theoretical pretensions of most european sovereigns. it is notorious, however, that as soon as the decay of the feudal system had thrown the mediæval constitutions out of working order, and when the reformation had discredited the authority of the pope, the doctrine of the divine right of kings rose immediately into an importance which had never before attended it. the vogue which it obtained entailed still more constant resort to the phraseology of roman law, and a controversy which had originally worn a theological aspect assumed more and more the air of a legal disputation. a phenomenon then appeared which has repeatedly shown itself in the history of opinion. just when the argument for monarchical authority rounded itself into the definite doctrine of filmer, the phraseology, borrowed from the law of contract, which had been used in defence of the rights of subjects, crystallised into the theory of an actual original compact between king and people, a theory which, first in english and afterwards, and more particularly, in french hands, expanded into a comprehensive explanation of all the phenomena of society and law. but the only real connection between political and legal science had consisted in the last giving to the first the benefit of its peculiarly plastic terminology. the roman jurisprudence of contract had performed for the relation of sovereign and subject precisely the same service which, in a humbler sphere, it rendered to the relation of persons bound together by an obligation of "quasi-contract." it had furnished a body of words and phrases which approximated with sufficient accuracy to the ideas which then were from time to time forming on the subject of political obligation. the doctrine of an original compact can never be put higher than it is placed by dr. whewell, when he suggests that, though unsound, "it may be a _convenient_ form for the expression of moral truths." the extensive employment of legal language on political subjects previously to the invention of the original compact, and the powerful influence which that assumption has exercised subsequently, amply account for the plentifulness in political science of words and conceptions, which were the exclusive creation of roman jurisprudence. of their plentifulness in moral philosophy a rather different explanation must be given, inasmuch as ethical writings have laid roman law under contribution much more directly than political speculations, and their authors have been much more conscious of the extent of their obligation. in speaking of moral philosophy as extraordinarily indebted to roman jurisprudence, i must be understood to intend moral philosophy as understood previously to the break in its history effected by kant, that is, as the science of the rules governing human conduct, of their proper interpretation and of the limitations to which they are subject. since the rise of the critical philosophy, moral science has almost wholly lost its older meaning, and, except where it is preserved under a debased form in the casuistry still cultivated by roman catholic theologians, it seems to be regarded nearly universally as a branch of ontological inquiry. i do not know that there is a single contemporary english writer, with the exception of dr. whewell, who understands moral philosophy as it was understood before it was absorbed by metaphysics and before the groundwork of its rules came to be a more important consideration than the rules themselves. so long, however, as ethical science had to do with the practical regimen of conduct, it was more or less saturated with roman law. like all the great subjects of modern thought, it was originally incorporated with theology. the science of moral theology, as it was at first called, and as it is still designated by the roman catholic divines, was undoubtedly constructed, to the full knowledge of its authors, by taking principles of conduct from the system of the church, and by using the language and methods of jurisprudence for their expression and expansion. while this process went on, it was inevitable that jurisprudence, though merely intended to be the vehicle of thought, should communicate its colour to the thought itself. the tinge received through contact with legal conceptions is perfectly perceptible in the earliest ethical literature of the modern world, and it is evident, i think, that the law of contract, based as it is on the complete reciprocity and indissoluble connection of rights and duties, has acted as a wholesome corrective to the predispositions of writers who, if left to themselves, might have exclusively viewed a moral obligation as the public duty of a citizen in the civitas dei. but the amount of roman law in moral theology becomes sensibly smaller at the time of its cultivation by the great spanish moralists. moral theology, developed by the juridical method of doctor commenting on doctor, provided itself with a phraseology of its own, and aristotelian peculiarities of reasoning and expression, imbibed doubtless in great part from the disputations on morals in the academical schools, take the place of that special turn of thought and speech which can never be mistaken by any person conversant with the roman law. if the credit of the spanish school of moral theologians had continued, the juridical ingredient in ethical science would have been insignificant, but the use made of their conclusions by the next generation of roman catholic writers on these subjects almost entirely destroyed their influence. moral theology, degraded into casuistry, lost all interest for the leaders of european speculation; and the new science of moral philosophy, which was entirely in the hands of the protestants, swerved greatly aside from the path which the moral theologians had followed. the effect was vastly to increase the influence of roman law on ethical inquiry. shortly[5] after the reformation, we find two great schools of thought dividing this class of subjects between them. the most influential of the two was at first the sect of school known to us as the casuists, all of them in spiritual communion with the roman catholic church, and nearly all of them affiliated to one or other of her religious orders. on the other side were a body of writers connected with each other by a common intellectual descent from the great author of the treatise _de jure belli et pacis_, hugo grotius. almost all of the latter were adherents of the reformation, and though it cannot be said that they were formally and avowedly at conflict with the casuists, the origin and object of their system were nevertheless essentially different from those of casuistry. it is necessary to call attention to this difference, because it involves the question of the influence of roman law on that department of thought with which both systems are concerned. the book of grotius, though it touches questions of pure ethics in every page, and though it is the parent immediate or remote of innumerable volumes of formal morality, is not, as is well known, a professed treatise on moral philosophy; it is an attempt to determine the law of nature, or natural law. now, without entering upon the question, whether the conception of a law natural be not exclusively a creation of the roman jurisconsults, we may lay down that, even on the admission of grotius himself, the dicta of the roman jurisprudence as to what parts of known positive law must be taken to be parts of the law of nature, are, if not infallible, to be received at all events with the profoundest respect. hence the system of grotius is implicated with roman law at its very foundation, and this connection rendered inevitable--what the legal training of the writer would perhaps have entailed without it--the free employment in every paragraph of technical phraseology, and of modes of reasoning, defining, and illustrating, which must sometimes conceal the sense, and almost always the force and cogency, of the argument from the reader who is unfamiliar with the sources whence they have been derived. on the other hand, casuistry borrows little from roman law, and the views of morality contended for have nothing whatever in common with the undertaking of grotius. all that philosophy of right and wrong which has become famous, or infamous, under the name of casuistry, had its origin in the distinction between mortal and venial sin. a natural anxiety to escape the awful consequences of determining a particular act to be mortally sinful, and a desire, equally intelligible, to assist the roman catholic church in its conflict with protestantism by disburthening it of an inconvenient theory, were the motives which impelled the authors of the casuistical philosophy to the invention of an elaborate system of criteria, intended to remove immoral actions, in as many cases as possible, out of the category of mortal offences, and to stamp them as venial sins. the fate of this experiment is matter of ordinary history. we know that the distinctions of casuistry, by enabling the priesthood to adjust spiritual control to all the varieties of human character, did really confer on it an influence with princes, statesmen, and generals, unheard of in the ages before the reformation, and did really contribute largely to that great reaction which checked and narrowed the first successes of protestantism. but beginning in the attempt, not to establish, but to evade--not to discover a principle, but to escape a postulate--not to settle the nature of right and wrong, but to determine what was not wrong of a particular nature,--casuistry went on with its dexterous refinements till it ended in so attenuating the moral features of actions, and so belying the moral instincts of our being, that at length the conscience of mankind rose suddenly in revolt against it, and consigned to one common ruin the system and its doctors. the blow, long pending, was finally struck in the _provincial letters_ of pascal, and since the appearance of those memorable papers, no moralist of the smallest influence or credit has ever avowedly conducted his speculations in the footsteps of the casuists. the whole field of ethical science was thus left at the exclusive command of the writers who followed grotius; and it still exhibits in an extraordinary degree the traces of that entanglement with roman law which is sometimes imputed as a fault, and sometimes the highest of its recommendations, to the grotian theory. many inquirers since grotius's day have modified his principles, and many, of course, since the rise of the critical philosophy, have quite deserted them; but even those who have departed most widely from his fundamental assumptions have inherited much of his method of statement, of his train of thought, and of his mode of illustration; and these have little meaning and no point to the person ignorant of roman jurisprudence. i have already said that, with the exception of the physical sciences, there is no walk of knowledge which has been so slightly affected by roman law as metaphysics. the reason is that discussion on metaphysical subjects has always been conducted in greek, first in pure greek, and afterwards in a dialect of latin expressly constructed to give expression to greek conceptions. the modern languages have only been fitted to metaphysical inquiries by adopting this latin dialect, or by imitating the process which was originally followed in its formation. the source of the phraseology which has been always employed for metaphysical discussion in modern times was the latin translations of aristotle, in which, whether derived or not from arabic versions, the plan of the translator was not to seek for analogous expressions in any part of latin literature, but to construct anew from latin roots a set of phrases equal to the expression of greek philosophical ideas. over such a process the terminology of roman law can have exercised little influence; at most, a few latin law terms in a transmuted shape have made their way into metaphysical language. at the same time it is worthy of remark that whenever the problems of metaphysics are those which have been most strongly agitated in western europe, the thought, if not the language, betrays a legal parentage. few things in the history of speculation are more impressive than the fact that no greek-speaking people has ever felt itself seriously perplexed by the great question of free-will and necessity. i do not pretend to offer any summary explanation of this, but it does not seem an irrelevant suggestion that neither the greeks, nor any society speaking and thinking in their language, ever showed the smallest capacity for producing a philosophy of law. legal science is a roman creation, and the problem of free-will arises when we contemplate a metaphysical conception under a legal aspect. how came it to be a question whether invariable sequence was identical with necessary connection? i can only say that the tendency of roman law, which became stronger as it advanced, was to look upon legal consequences as united to legal causes by an inexorable necessity, a tendency most markedly exemplified in the definition of obligation which i have repeatedly cited, "juris vinculum quo necessitate adstringimur alicujus solvendæ rei." but the problem of free-will was theological before it became philosophical, and, if its terms have been affected by jurisprudence, it will be because jurisprudence had made itself felt in theology. the great point of inquiry which is here suggested has never been satisfactorily elucidated. what has to be determined, is whether jurisprudence has ever served as the medium through which theological principles have been viewed; whether, by supplying a peculiar language, a peculiar mode of reasoning, and a peculiar solution of many of the problems of life, it has ever opened new channels in which theological speculation could flow out and expand itself. for the purpose of giving an answer it is necessary to recollect what is already agreed upon by the best writers as to the intellectual food which theology first assimilated. it is conceded on all sides that the earliest language of the christian church was greek, and that the problems to which it first addressed itself were those for which greek philosophy in its later forms had prepared the way. greek metaphysical literature contained the sole stock of words and ideas out of which the human mind could provide itself with the means of engaging in the profound controversies as to the divine persons, the divine substance, and the divine natures. the latin language and the meagre latin philosophy were quite unequal to the undertaking, and accordingly the western or latin-speaking provinces of the empire adopted the conclusions of the east without disputing or reviewing them. "latin christianity," says dean milman, "accepted the creed which its narrow and barren vocabulary could hardly express in adequate terms. yet, throughout, the adhesion of rome and the west was a passive acquiescence in the dogmatic system which had been wrought out by the profounder theology of the eastern divines, rather than a vigorous and original examination on her part of those mysteries. the latin church was the scholar as well as the loyal partizan of athanasius." but when the separation of east and west became wider, and the latin-speaking western empire began to live with an intellectual life of its own, its deference to the east was all at once exchanged for the agitation of a number of questions entirely foreign to eastern speculation. "while greek theology (milman, _latin christianity_, preface, 5) went on defining with still more exquisite subtlety the godhead and the nature of christ"--"while the interminable controversy still lengthened out and cast forth sect after sect from the enfeebled community"--the western church threw itself with passionate ardour into a new order of disputes, the same which from those days to this have never lost their interest for any family of mankind at any time included in the latin communion. the nature of sin and its transmission by inheritance--the debt owed by man and its vicarious satisfaction--the necessity and sufficiency of the atonement--above all the apparent antagonism between free-will and the divine providence--these were the points which the west began to debate as ardently as ever the east had discussed the articles of its more special creed. why is it then that on the two sides of the line which divides the greek-speaking from the latin-speaking provinces there lie two classes of theological problems so strikingly different from one another? the historians of the church have come close upon the solution when they remark that the new problems were more "practical," less absolutely speculative, than those which had torn eastern christianity asunder, but none of them, so far as i am aware, has quite reached it. i affirm without hesitation that the difference between the two theological systems is accounted for by the fact that, in passing from the east to the west, theological speculation had passed from a climate of greek metaphysics to a climate of roman law. for some centuries before these controversies rose into overwhelming importance, all the intellectual activity of the western romans had been expended on jurisprudence exclusively. they had been occupied in applying a peculiar set of principles to all the combinations in which the circumstances of life are capable of being arranged. no foreign pursuit or taste called off their attention from this engrossing occupation, and for carrying it on they possessed a vocabulary as accurate as it was copious, a strict method of reasoning, a stock of general propositions on conduct more or less verified by experience, and a rigid moral philosophy. it was impossible that they should not select from the questions indicated by the christian records those which had some affinity with the order of speculations to which they were accustomed, and that their manner of dealing with them should borrow something from their forensic habits. almost everybody who has knowledge enough of roman law to appreciate the roman penal system, the roman theory of the obligations established by contract or delict, the roman view of debts and of the modes of incurring, extinguishing, and transmitting them, the roman notion of the continuance of individual existence by universal succession, may be trusted to say whence arose the frame of mind to which the problems of western theology proved so congenial, whence came the phraseology in which these problems were stated, and whence the description of reasoning employed in their solution. it must only be recollected that roman law which had worked itself into western thought was neither the archaic system of the ancient city, nor the pruned and curtailed jurisprudence of the byzantine emperors; still less, of course, was it the mass of rules, nearly buried in a parasitical overgrowth of modern speculative doctrine, which passes by the name of modern civil law. i speak only of that philosophy of jurisprudence, wrought out by the great juridical thinkers of the antonine age, which may still be partially reproduced from the pandects of justinian, a system to which few faults can be attributed except it perhaps aimed at a higher degree of elegance, certainty, and precision, than human affairs will permit to the limits within which human laws seek to confine them. it is a singular result of that ignorance of roman law which englishmen readily confess, and of which they are sometimes not ashamed to boast, that many english writers of note and credit have been led by it to put forward the most untenable of paradoxes concerning the condition of human intellect during the roman empire. it has been constantly asserted, as unhesitatingly as if there were no temerity in advancing the proposition, that from the close of the augustan era to the general awakening of interest on the points of the christian faith, the mental energies of the civilised world were smitten with a paralysis. now there are two subjects of thought--the only two perhaps with the exception of physical science--which are able to give employment to all the powers and capacities which the mind possesses. one of them is metaphysical inquiry, which knows no limits so long as the mind is satisfied to work on itself; the other is law, which is as extensive as the concerns of mankind. it happens that, during the very period indicated, the greek-speaking provinces were devoted to one, the latin-speaking provinces to the other, of these studies. i say nothing of the fruits of speculation in alexandria and the east, but i confidently affirm that rome and the west had an occupation in hand fully capable of compensating them for the absence of every other mental exercise, and i add that the results achieved, so far as we know them, were not unworthy of the continuous and exclusive labour bestowed on producing them. nobody except a professional lawyer is perhaps in a position completely to understand how much of the intellectual strength of individuals law is capable of absorbing, but a layman has no difficulty in comprehending why it was that an unusual share of the collective intellect of rome was engrossed by jurisprudence. "the proficiency[6] of a given community in jurisprudence depends in the long run on the same conditions as its progress in any other line of inquiry; and the chief of these are the proportion of the national intellect devoted to it, and the length of time during which it is so devoted. now, a combination of all the causes, direct and indirect, which contribute to the advancing and perfecting of a science continued to operate on the jurisprudence of rome through the entire space between the twelve tables and the severance of the two empires,--and that not irregularly or at intervals, but in steadily increasing force and constantly augmenting number. we should reflect that the earliest intellectual exercise to which a young nation devotes itself is the study of its laws. as soon as the mind makes its first conscious efforts towards generalisation, the concerns of every-day life are the first to press for inclusion within general rules and comprehensive formulas. the popularity of the pursuit on which all the energies of the young commonwealth are bent is at the outset unbounded; but it ceases in time. the monopoly of mind by law is broken down. the crowd at the morning audience of the great roman jurisconsult lessens. the students are counted by hundreds instead of thousands in the english inns of court. art, literature, science, and politics, claim their share of the national intellect; and the practice of jurisprudence is confined within the circle of a profession, never indeed limited or insignificant, but attracted as much by the rewards as by the intrinsic recommendations of their science. this succession of changes exhibited itself even more strikingly at rome than in england. to the close of the republic the law was the sole field for all ability except the special talent of a capacity for generalship. but a new stage of intellectual progress began with the augustan age, as it did with our own elizabethan era. we all know what were its achievements in poetry and prose; but there are some indications, it should be remarked, that, besides its efflorescence in ornamental literature, it was on the eve of throwing out new aptitudes for conquest in physical science. here, however, is the point at which the history of mind in the roman state ceases to be parallel to the routes which mental progress had since then pursued. the brief span of roman literature, strictly so called, was suddenly closed under a variety of influences, which though they may partially be traced it would be improper in this place to analyse. ancient intellect was forcibly thrust back into its old courses, and law again became no less exclusively the proper sphere for talent than it had been in the days when the romans despised philosophy and poetry as the toys of a childish race. of what nature were the external inducements which, during the imperial period, tended to draw a man of inherent capacity to the pursuits of the jurisconsult may best be understood by considering the option which was practically before him in his choice of a profession. he might become a teacher of rhetoric, a commander of frontier-posts, or a professional writer of panegyrics. the only other walk of active life which was open to him was the practice of the law. through _that_ lay the approach to wealth, to fame, to office, to the council-chamber of the monarch--it may be to the very throne itself." the premium on the study of jurisprudence was so enormous that there were schools of law in every part of the empire, even in the very domain of metaphysics. but, though the transfer of the seat of empire to byzantium gave a perceptible impetus to its cultivation in the east, jurisprudence never dethroned the pursuits which there competed with it. its language was latin, an exotic dialect in the eastern half of the empire. it is only of the west that we can lay down that law was not only the mental food of the ambitious and aspiring, but the sole aliment of all intellectual activity. greek philosophy had never been more than a transient fashionable taste with the educated class of rome itself, and when the new eastern capital had been created, and the empire subsequently divided into two, the divorce of the western provinces from greek speculation, and their exclusive devotion to jurisprudence, became more decided than ever. as soon then as they ceased to sit at the feet of the greeks and began to ponder out a theology of their own, the theology proved to be permeated with forensic ideas and couched in a forensic phraseology. it is certain that this substratum of law in western theology lies exceedingly deep. a new set of greek theories, the aristotelian philosophy, made their way afterwards into the west and almost entirely buried its indigenous doctrines. but when at the reformation it partially shook itself free from their influence, it instantly supplied their place with law. it is difficult to say whether the religious system of calvin or the religious system of the arminians has the more markedly legal character. the vast influence of the specific jurisprudence of contract produced by the romans upon the corresponding department of modern law belongs rather to the history of mature jurisprudence than to a treatise like the present. it did not make itself felt till the school of bologna founded the legal science of modern europe. but the fact that the romans, before their empire fell, had so fully developed the conception of contract becomes of importance at a much earlier period than this. feudalism, i have repeatedly asserted, was a compound of archaic barbarian usage with roman law; no other explanation of it is tenable, or even intelligible. the earliest social forms of the feudal period differ in little from the ordinary associations in which the men of primitive civilisations are everywhere seen united. a fief was an organically complete brotherhood of associates whose proprietary and personal rights were inextricably blended together. it had much in common with an indian village community and much in common with a highland clan. but still it presents some phenomena which we never find in the associations which are spontaneously formed by beginners in civilisation. true archaic communities are held together not by express rules, but by sentiment, or, we should perhaps say, by instinct; and new comers into the brotherhood are brought within the range of this instinct by falsely pretending to share in the blood-relationship from which it naturally springs. but the earliest feudal communities were neither bound together by mere sentiment nor recruited by a fiction. the tie which united them was contract, and they obtained new associates by contracting with them. the relation of the lord to the vassals had originally been settled by express engagement, and a person wishing to engraft himself on the brotherhood by _commendation_ or _infeudation_ came to a distinct understanding as to the conditions on which he was to be admitted. it is therefore the sphere occupied in them by contract which principally distinguishes the feudal institutions from the unadulterated usages of primitive races. the lord had many of the characteristics of a patriarchal chieftain, but his prerogative was limited by a variety of settled customs traceable to the express conditions which had been agreed upon when the infeudation took place. hence flow the chief differences which forbid us to class the feudal societies with true archaic communities. they were much more durable and much more various; more durable, because express rules are less destructible than instinctive habits, and more various, because the contracts on which they were founded were adjusted to the minutest circumstances and wishes of the persons who surrendered or granted away their lands. this last consideration may serve to indicate how greatly the vulgar opinions current among us as to the origin of modern society stand in need of revision. it is often said that the irregular and various contour of modern civilisation is due to the exuberant and erratic genius of the germanic races, and it is often contrasted with the dull routine of the roman empire. the truth is that the empire bequeathed to modern society the legal conception to which all this irregularity is attributable; if the customs and institutions of barbarians have one characteristic more striking than another, it is their extreme uniformity. [5] the passage quoted is transcribed with slight alterations from a paper contributed by the author to the _cambridge essays_ for 1856. [6] _cambridge essays_, 1856. chapter x the early history of delict and crime the teutonic codes, including those of our anglo-saxon ancestors, are the only bodies of archaic secular law which have come down to us in such a state that we can form an exact notion of their original dimensions. although the extant fragments of roman and hellenic codes suffice to prove to us their general character, there does not remain enough of them for us to be quite sure of their precise magnitude or of the proportion of their parts to each other. but still on the whole all the known collections of ancient law are characterised by a feature which broadly distinguishes them from systems of mature jurisprudence. the proportion of criminal to civil law is exceedingly different. in the german codes, the civil part of the law has trifling dimensions as compared with the criminal. the traditions which speak of the sanguinary penalties inflicted by the code of draco seem to indicate that it had the same characteristic. in the twelve tables alone, produced by a society of greater legal genius and at first of gentler manners, the civil law has something like its modern precedence; but the relative amount of space given to the modes of redressing wrong, though not enormous, appears to have been large. it may be laid down, i think, that the more archaic the code, the fuller and the minuter is its penal legislation. the phenomenon has often been observed, and has been explained, no doubt to a great extent correctly, by the violence habitual to the communities which for the first time reduced their laws to writing. the legislator, it is said, proportioned the divisions of his work to the frequency of a certain class of incidents in barbarian life. i imagine, however, that this account is not quite complete. it should be recollected that the comparative barrenness of civil law in archaic collections is consistent with those other characteristics of ancient jurisprudence which have been discussed in this treatise. nine-tenths of the civil part of the law practised by civilised societies are made up of the law of persons, of the law of property and of inheritance, and of the law of contract. but it is plain that all these provinces of jurisprudence must shrink within narrower boundaries, the nearer we make our approaches to the infancy of social brotherhood. the law of persons, which is nothing else than the law of status, will be restricted to the scantiest limits as long as all forms of status are merged in common subjection to paternal power, as long as the wife has no rights against her husband, the son none against his father, and the infant ward none against the agnates who are his guardians. similarly, the rules relating to property and succession can never be plentiful, so long as land and goods devolve within the family, and, if distributed at all, are distributed inside its circle. but the greatest gap in ancient civil law will always be caused by the absence of contract, which some archaic codes do not mention at all, while others significantly attest the immaturity of the moral notions on which contract depends by supplying its place with an elaborate jurisprudence of oaths. there are no corresponding reasons for the poverty of penal law, and accordingly, even if it be hazardous to pronounce that the childhood of nations is always a period of ungoverned violence, we shall still be able to understand why the modern relation of criminal law to civil should be inverted in ancient codes. i have spoken of primitive jurisprudence as giving to _criminal_ law a priority unknown in a later age. the expression has been used for convenience' sake, but in fact the inspection of ancient codes shows that the law which they exhibit in unusual quantities is not true criminal law. all civilised systems agree in drawing a distinction between offences against the state or community and offences against the individual, and the two classes of injuries, thus kept apart, i may here, without pretending that the terms have always been employed consistently in jurisprudence, call crimes and wrongs, _crimina_ and _delicta_. now the penal law of ancient communities is not the law of crimes; it is the law of wrongs, or, to use the english technical word, of torts. the person injured proceeds against the wrong-doer by an ordinary civil action, and recovers compensation in the shape of money-damages if he succeeds. if the commentaries of gaius be opened at the place where the writer treats of the penal jurisprudence founded on the twelve tables, it will be seen that at the head of the civil wrongs recognised by the roman law stood _furtum_ or _theft_. offences which we are accustomed to regard exclusively as _crimes_ are exclusively treated as _torts_, and not theft only, but assault and violent robbery, are associated by the jurisconsult with trespass, libel and slander. all alike gave rise to an obligation or _vinculum juris_, and were all requited by a payment of money. this peculiarity, however, is most strongly brought out in the consolidated laws of the germanic tribes. without an exception, they describe an immense system of money compensations for homicide, and with few exceptions, as large a scheme of compensations for minor injuries. "under anglo-saxon law," writes mr. kemble (_anglo-saxons_, i. 177), "a sum was placed on the life of every free man, according to his rank, and a corresponding sum on every wound that could be inflicted on his person, for nearly every injury that could be done to his civil rights, honour or peace; the sum being aggravated according to adventitious circumstances." these compositions are evidently regarded as a valuable source of income; highly complex rules regulate the title to them and the responsibility for them; and, as i have already had occasion to state, they often follow a very peculiar line of devolution, if they have not been acquitted at the decease of the person to whom they belong. if therefore the criterion of a _delict_, _wrong_, or _tort_ be that the person who suffers it, and not the state, is conceived to be wronged, it may be asserted that in the infancy of jurisprudence the citizen depends for protection against violence or fraud not on the law of crime but on the law of tort. torts then are copiously enlarged upon in primitive jurisprudence. it must be added that sins are known to it also. of the teutonic codes it is almost unnecessary to make this assertion, because those codes, in the form in which we have received them, were compiled or recast by christian legislators. but it is also true that non-christian bodies of archaic law entail penal consequences on certain classes of acts and on certain classes of omissions, as being violations of divine prescriptions and commands. the law administered at athens by the senate of areopagus was probably a special religious code, and at rome, apparently from a very early period, the pontifical jurisprudence punished adultery, sacrilege and perhaps murder. there were therefore in the athenian and in the roman states laws punishing _sins_. there were also laws punishing _torts_. the conception of offence against god produced the first class of ordinances; the conception of offence against one's neighbour produced the second; but the idea of offence against the state or aggregate community did not at first produce a true criminal jurisprudence. yet it is not to be supposed that a conception so simple and elementary as that of wrong done to the state was wanting in any primitive society. it seems rather that the very distinctness with which this conception is realised is the true cause which at first prevents the growth of a criminal law. at all events, when the roman community conceived itself to be injured, the analogy of a personal wrong received was carried out to its consequences with absolute literalness, and the state avenged itself by a single act on the individual wrong-doer. the result was that, in the infancy of the commonwealth, every offence vitally touching its security or its interests was punished by a separate enactment of the legislature. and this is the earliest conception of a _crimen_ or crime--an act involving such high issues that the state, instead of leaving its cognisance to the civil tribunal or the religious court, directed a special law or _privilegium_ against the perpetrator. every indictment therefore took the form of a bill of pains and penalties, and the trial of a _criminal_ was a proceeding wholly extraordinary, wholly irregular, wholly independent of settled rules and fixed conditions. consequently, both for the reason that the tribunal dispensing justice was the sovereign state itself and also for the reason that no classification of the acts prescribed or forbidden was possible, there was not at this epoch any _law_ of crimes, any criminal jurisprudence. the procedure was identical with the forms of passing an ordinary statute; it was set in motion by the same persons and conducted with precisely the same solemnities. and it is to be observed that, when a regular criminal law with an apparatus of courts and officers for its administration had afterwards come into being, the old procedure, as might be supposed from its conformity with theory, still in strictness remained practicable; and, much as resort to such an expedient was discredited, the people of rome always retained the power of punishing by a special law offences against its majesty. the classical scholar does not require to be reminded that in exactly the same manner the athenian bill of pains and penalties, or [greek: eisangelia], survived the establishment of regular tribunals. it is known too that when the freemen of the teutonic races assembled for legislation, they also claimed authority to punish offences of peculiar blackness or perpetrated by criminals of exalted station. of this nature was the criminal jurisdiction of the anglo-saxon witenagemot. it may be thought that the difference which i have asserted to exist between the ancient and modern view of penal law has only a verbal existence. the community, it may be said, besides interposing to punish crimes legislatively, has from the earliest times interfered by its tribunals to compel the wrong-doer to compound for his wrong, and, if it does this, it must always have supposed that in some way it was injured through his offence. but, however rigorous this inference may seem to us now-a-days, it is very doubtful whether it was actually drawn by the men of primitive antiquity. how little the notion of injury to the community had to do with the earliest interferences of the state _through its tribunals_, is shown by the curious circumstances that in the original administration of justice, the proceedings were a close imitation of the series of acts which were likely to be gone through in private life by persons who were disputing, but who afterwards suffered their quarrel to be appeased. the magistrate carefully simulated the demeanour of a private arbitrator casually called in. in order to show that this statement is not a mere fanciful conceit, i will produce the evidence on which it rests. very far the most ancient judicial proceeding known to us is the legis actio sacramenti of the romans, out of which all the later roman law of actions may be proved to have grown. gaius carefully describes its ceremonial. unmeaning and grotesque as it appears at first sight, a little attention enables us to decipher and interpret it. the subject of litigation is supposed to be in court. if it is moveable, it is actually there. if it be immoveable, a fragment or sample of it is brought in its place; land, for instance, is represented by a clod, a house by a single brick. in the example selected by gaius, the suit is for a slave. the proceeding begins by the plaintiff's advancing with a rod, which, as gaius expressly tells, symbolised a spear. he lays hold of the slave and asserts a right to him with the words, "_hunc ego hominem ex jure quiritium meum esse dico secundum suam causam sicut dixi_;" and then saying, "_ecce tibi vindictam imposui_," he touches him with the spear. the defendant goes through the same series of acts and gestures. on this the prætor intervenes, and bids the litigants relax their hold, "_mittite ambo hominem_." they obey, and the plaintiff demands from the defendant the reason of his interference, "_postulo anne dicas quâ ex causâ vindicaveris_," a question which is replied to by a fresh assertion of right, "_jus peregi sicut vindictam imposui_." on this, the first claimant offers to stake a sum of money, called a sacramentum, on the justice of his own case, "_quando tu injuriâ provocasti, d æris sacramento te provoco_," and the defendant, in the phrase "_similiter ego te_," accepts the wager. the subsequent proceedings were no longer of a formal kind, but it is to be observed that the prætor took security for the sacramentum, which always went into the coffers of the state. such was the necessary preface of every ancient roman suit. it is impossible, i think, to refuse assent to the suggestion of those who see in it a dramatisation of the origin of justice. two armed men are wrangling about some disputed property. the prætor, _vir pietate gravis_, happens to be going by, and interposes to stop the contest. the disputants state their case to him, and agree that he shall arbitrate between them, it being arranged that the loser, besides resigning the subject of the quarrel, shall pay a sum of money to the umpire as remuneration for his trouble and loss of time. this interpretation would be less plausible than it is, were it not that, by a surprising coincidence, the ceremony described by gaius as the imperative course of proceeding in a legis actio is substantially the same with one of the two subjects which the god hephæstus is described by homer as moulding into the first compartment of the shield of achilles. in the homeric trial-scene, the dispute, as if expressly intended to bring out the characteristics of primitive society, is not about property but about the composition for a homicide. one person asserts that he has paid it, the other that he has never received it. the point of detail, however, which stamps the picture as the counterpart of the archaic roman practice is the reward designed for the judges. two talents of gold lie in the middle, to be given to him who shall explain the grounds of the decision most to the satisfaction of the audience. the magnitude of this sum as compared with the trifling amount of the sacramentum seems to me indicative of the indifference between fluctuating usage and usage consolidated into law. the scene introduced by the poet as a striking and characteristic, but still only occasional, feature of city-life in the heroic age has stiffened, at the opening of the history of civil process, into the regular, ordinary formalities of a lawsuit. it is natural therefore that in the legis actio the remuneration of the judge should be reduced to a reasonable sum, and that, instead of being adjudged to one of a number of arbitrators by popular acclamation, it should be paid as a matter of course to the state which the prætor represents. but that the incidents described so vividly by homer, and by gaius with even more than the usual crudity of technical language, have substantially the same meaning, i cannot doubt; and, in confirmation of this view, it may be added that many observers of the earliest judicial usages of modern europe have remarked that the fines inflicted by courts on offenders were originally _sacramenta_. the state did not take from the defendant a composition for any wrong supposed to be done to itself, but claimed a share in the compensation awarded to the plaintiff simply as the fair price of its time and trouble. mr. kemble expressly assigns this character to the anglo-saxon _bannum_ or _fredum_. ancient law furnishes other proofs that the earliest administrators of justice simulated the probable acts of persons engaged in a private quarrel. in settling the damages to be awarded, they took as their guide the measure of vengeance likely to be exacted by an aggrieved person under the circumstances of the case. this is the true explanation of the very different penalties imposed by ancient law on offenders caught in the act or soon after it and on offenders detected after considerable delay. some strange exemplifications of this peculiarity are supplied by the old roman law of theft. the laws of the twelve tables seem to have divided thefts into manifest and non-manifest, and to have allotted extraordinarily different penalties to the offence according as it fell under one head or the other. the manifest thief was he who was caught within the house in which he had been pilfering, or who was taken while making off to a place of safety with the stolen goods; the twelve tables condemned him to be put to death if he were already a slave, and, if he was a freeman, they made him the bondsman of the owner of the property. the non-manifest thief was he who was detected under any other circumstances than those described; and the old code simply directed that an offender of this sort should refund double the value of what he had stolen. in gaius's day the excessive severity of the twelve tables to the manifest thief had naturally been much mitigated, but the law still maintained the old principle by mulcting him in fourfold the value of the stolen goods, while the non-manifest thief still continued to pay merely the double. the ancient lawgiver doubtless considered that the injured proprietor, if left to himself, would inflict a very different punishment when his blood was hot from that with which he would be satisfied when the thief was detected after a considerable interval; and to this calculation the legal scale of penalties was adjusted. the principle is precisely the same as that followed in the anglo-saxon and other germanic codes, when they suffer a thief chased down and caught with the booty to be hanged or decapitated on the spot, while they exact the full penalties of homicide from anybody who kills him after the pursuit has been intermitted. these archaic distinctions bring home to us very forcibly the distance of a refined from a rude jurisprudence. the modern administrator of justice has confessedly one of the hardest tasks before him when he undertakes to discriminate between the degrees of criminality which belong to offences falling within the same technical description. it is always easy to say that a man is guilty of manslaughter, larceny, or bigamy, but it is often most difficult to pronounce what extent of moral guilt he has incurred, and consequently what measure of punishment he has deserved. there is hardly any perplexity in casuistry, or in the analysis of motive, which we may not be called upon to confront, if we attempt to settle such a point with precision; and accordingly the law of our day shows an increasing tendency to abstain as much as possible from laying down positive rules on the subject. in france, the jury is left to decide whether the offence which it finds committed has been attended by extenuating circumstances; in england, a nearly unbounded latitude in the selection of punishments is now allowed to the judge; while all states have in reserve an ultimate remedy for the miscarriages of law in the prerogative of pardon, universally lodged with the chief magistrate. it is curious to observe how little the men of primitive times were troubled with these scruples, how completely they were persuaded that the impulses of the injured person were the proper measure of the vengeance he was entitled to exact, and how literally they imitated the probable rise and fall of his passions in fixing their scale of punishment. i wish it could be said that their method of legislation is quite extinct. there are, however, several modern systems of law which, in cases of graver wrong, admit the fact of the wrong-doer having been taken in the act to be pleaded in justification of inordinate punishment inflicted on him by the sufferer--an indulgence which, though superficially regarded it may seem intelligible, is based, as it seems to me, on a very low morality. nothing, i have said, can be simpler than the considerations which ultimately led ancient societies to the formation of a true criminal jurisprudence. the state conceived itself to be wronged, and the popular assembly struck straight at the offender with the same movement which accompanied its legislative action. it is further true of the ancient world--though not precisely of the modern, as i shall have occasion to point out--that the earliest criminal tribunals were merely subdivisions, or committees, of the legislature. this, at all events, is the conclusion pointed at by the legal history of the two great states of antiquity, with tolerable clearness in one case, and with absolute distinctness in the other. the primitive penal law of athens entrusted the castigation of offences partly to the archons, who seem to have punished them as _torts_, and partly to the senate of areopagus, which punished them as _sins_. both jurisdictions were substantially transferred in the end to the heliæa, the high court of popular justice, and the functions of the archons and of the areopagus became either merely ministerial or quite insignificant. but "heliæa" is only an old word for assembly; the heliæa of classical times was simply the popular assembly convened for judicial purposes, and the famous dikasteries of athens were only its subdivisions or panels. the corresponding changes which occurred at rome are still more easily interpreted, because the romans confined their experiments to the penal law, and did not, like the athenians, construct popular courts with a civil as well as a criminal jurisdiction. the history of roman criminal jurisprudence begins with the old judicia populi, at which the kings are said to have presided. these were simply solemn trials of great offenders under legislative forms. it seems, however, that from an early period the comitia had occasionally delegated its criminal jurisdiction to a quæstio or commission, which bore much the same relation to the assembly as a committee of the house of commons bears to the house itself, except that the roman commissioners or quæstores did not merely _report_ to the comitia, but exercised all powers which that body was itself in the habit of exercising, even to the passing sentence on the accused. a quæstio of this sort was only appointed to try a particular offender, but there was nothing to prevent two or three quæstiones sitting at the same time; and it is probable that several of them were appointed simultaneously, when several grave cases of wrong to the community had occurred together. there are also indications that now and then these quæstiones approached the character of our _standing_ committees, in that they were appointed periodically, and without waiting for occasion to arise in the commission of some serious crime. the old quæstores parricidii, who are mentioned in connection with transactions of very ancient date, as being deputed to try (or, as some take it, to search out and try) all cases of parricide and murder, seem to have been appointed regularly every year; and the duumviri perduellionis, or commission of two for trial of violent injury to the commonwealth, are also believed by most writers to have been named periodically. the delegations of power to these latter functionaries bring us some way forwards. instead of being appointed _when and as_ state-offences were committed, they had a general, though a temporary jurisdiction over such as _might_ be perpetrated. our proximity to a regular criminal jurisprudence is also indicated by the general terms "parricidium" and "perduellio" which mark the approach to something like a classification of crimes. the true criminal law did not however come into existence till the year b.c. 149, when l. calpurnius piso carried the statute known as the lex calpurnia de repetundis. the law applied to cases repetundarum pecuniarum, that is, claims by provincials to recover monies improperly received by a governor-general, but the great and permanent importance of this statute arose from its establishing the first quæstio perpetua. a quæstio perpetua was a _permanent_ commission as opposed to those which were occasional and to those which were temporary. it was a regular criminal tribunal whose existence dated from the passing of the statute creating it and continued till another statute should pass abolishing it. its members were not specially nominated, as were the members of the older quæstiones, but provision was made in the law constituting it for selecting from particular classes the judges who were to officiate, and for renewing them in conformity with definite rules. the offences of which it took cognisance were also expressly named and defined in this statute, and the new quæstio had authority to try and sentence all persons in future whose acts should fall under the definitions of crime supplied by the law. it was therefore a regular criminal judicature, administering a true criminal jurisprudence. the primitive history of criminal law divides itself therefore into four stages. understanding that the conception of _crime_, as distinguished from that of _wrong_ or _tort_ and from that of _sin_, involves the idea of injury to the state or collective community, we first find that the commonwealth, in literal conformity with the conception, itself interposed directly, and by isolated acts, to avenge itself on the author of the evil which it had suffered. this is the point from which we start; each indictment is now a bill of pains and penalties, a special law naming the criminal and prescribing his punishment. a _second_ step is accomplished, when the multiplicity of crimes compels the legislature to delegate its powers to particular quæstiones or commissions, each of which is deputed to investigate a particular accusation, and if it be proved, to punish the particular offender. yet _another_ movement is made when the legislature, instead of waiting for the alleged commission of a crime as the occasion of appointing a quæstio, periodically nominates commissioners like the quæstores parricidii and the duumviri perduellionis, on the chance of certain classes of crimes being committed, and in the expectation that they _will_ be perpetrated. the _last_ stage is reached when the quæstiones from being periodical or occasional become permanent benches or chambers--when the judges, instead of being named in the particular law nominating the commission, are directed to be chosen through all future time in a particular way and from a particular class--and when certain acts are described in general language and declared to be crimes, to be visited, in the event of their perpetration, with specified penalties appropriated to each description. if the quæstiones perpetuæ had had a longer history, they would doubtless have come to be regarded as a distinct institution, and their relation to the comitia would have seemed no closer than the connection of our own courts of law with the sovereign, who is theoretically the fountain of justice. but the imperial despotism destroyed them before their origin had been completely forgotten, and, so long as they lasted, these permanent commissions were looked upon by the romans as the mere depositaries of a delegated power. the cognisance of crimes was considered a natural attribute of the legislature, and the mind of the citizen never ceased to be carried back from the quæstiones, to the comitia which had deputed them to put into exercise some of its own inalienable functions. the view which regarded the quæstiones, even when they became permanent, as mere committees of the popular assembly--as bodies which only ministered to a higher authority--had some important legal consequences which left their mark on the criminal law to the very latest period. one immediate result was that the comitia continued to exercise criminal jurisdiction by way of bill of pains and penalties, long after the quæstiones had been established. though the legislature had consented to delegate its powers for the sake of convenience to bodies external to itself, it did not follow that it surrendered them. the comitia and the quæstiones went on trying and punishing offenders side by side; and any unusual outburst of popular indignation was sure, until the extinction of the republic, to call down upon its object an indictment before the assembly of the tribes. one of the most remarkable peculiarities of the institutions of the republic is also traceable to this dependance of the quæstiones on the comitia. the disappearance of the punishment of death from the penal system of republican rome used to be a very favourite topic with the writers of the last century, who were perpetually using it to point some theory of the roman character or of modern social economy. the reason which can be confidently assigned for it stamps it as purely fortuitous. of the three forms which the roman legislature successively assumed, one, it is well known--the comitia centuriata--was exclusively taken to represent the state as embodied for military operations. the assembly of the centuries, therefore, had all powers which may be supposed to be properly lodged with a general commanding an army, and, among them, it had authority to subject all offenders to the same correction to which a soldier rendered himself liable by breaches of discipline. the comitia centuriata could therefore inflict capital punishment. not so, however, the comitia curiata or comitia tributa. they were fettered on this point by the sacredness with which the person of a roman citizen, inside the walls of the city, was invested by religion and law; and, with respect to the last of them, the comitia tributa, we know for certain that it became a fixed principle that the assembly of the tribes could at most impose a fine. so long as criminal jurisdiction was confined to the legislature, and so long as the assemblies of the centuries and of the tribes continued to exercise co-ordinate powers, it was easy to prefer indictments for graver crimes before the legislative body which dispensed the heavier penalties; but then it happened that the more democratic assembly, that of the tribes, almost entirely superseded the others, and became the ordinary legislature of the later republic. now the decline of the republic was exactly the period during which the quæstiones perpetuæ were established, so that the statutes creating them were all passed by a legislative assembly which itself could not, at its ordinary sittings, punish a criminal with death. it followed that the permanent judicial commissions, holding a delegated authority, were circumscribed in their attributes and capacities by the limits of the powers residing with the body which deputed them. they could do nothing which the assembly of the tribes could not have done; and, as the assembly could not sentence to death, the quæstiones were equally incompetent to award capital punishment. the anomaly thus resulting was not viewed in ancient times with anything like the favour which it has attracted among the moderns, and indeed, while it is questionable whether the roman character was at all the better for it, it is certain that the roman constitution was a great deal the worse. like every other institution which has accompanied the human race down the current of its history, the punishment of death is a necessity of society in certain stages of the civilising process. there is a time when the attempt to dispense with it baulks both of the two great instincts which lie at the root of all penal law. without it, the community neither feels that it is sufficiently revenged on the criminal, nor thinks that the example of his punishment is adequate to deter others from imitating him. the incompetence of the roman tribunals to pass sentence of death led distinctly and directly to those frightful revolutionary intervals, known as the proscriptions, during which all law was formally suspended simply because party violence could find no other avenue to the vengeance for which it was thirsting. no cause contributed so powerfully to the decay of political capacity in the roman people as this periodical abeyance of the laws; and, when it had once been resorted to, we need not hesitate to assert that the ruin of roman liberty became merely a question of time. if the practice of the tribunals had afforded an adequate vent for popular passion, the forms of judicial procedure would no doubt have been as flagrantly perverted as with us in the reigns of the later stuarts, but national character would not have suffered as deeply as it did, nor would the stability of roman institutions have been as seriously enfeebled. i will mention two more singularities of the roman criminal system which were produced by the same theory of judicial authority. they are, the extreme multiplicity of the roman criminal tribunals, and the capricious and anomalous classification of crimes which characterised roman penal jurisprudence throughout its entire history. every _quæstio_, it has been said, whether perpetual or otherwise, had its origin in a distinct statute. from the law which created it, it derived its authority; it rigorously observed the limits which its charter prescribed to it, and touched no form of criminality which that charter did not expressly define. as then the statutes which constituted the various quæstiones were all called forth by particular emergencies, each of them being in fact passed to punish a class of acts which the circumstances of the time rendered particularly odious or particularly dangerous, these enactments made not the slightest reference to each other, and were connected by no common principle. twenty or thirty different criminal laws were in existence together, with exactly the same number of quæstiones to administer them; nor was any attempt made during the republic to fuse these distinct judicial bodies into one, or to give symmetry to the provisions of the statutes which appointed them and defined their duties. the state of the roman criminal jurisdiction at this period, exhibited some resemblances to the administration of civil remedies in england at the time when the english courts of common law had not as yet introduced those fictitious averments into their writs which enabled them to trespass on each other's peculiar province. like the quæstiones, the courts of queen's bench, common pleas, and exchequer were all theoretical emanations from a higher authority, and each entertained a special class of cases supposed to be committed to it by the fountain of its jurisdiction; but then the roman quæstiones were many more than three in number, and it was infinitely less easy to discriminate the acts which fell under the cognisance of each quæstio, than to distinguish between the provinces of the three courts in westminster hall. the difficulty of drawing exact lines between the spheres of the different quæstiones made the multiplicity of roman tribunals something more than a mere inconvenience; for we read with astonishment that when it was not immediately clear under what general description a man's alleged offences ranged themselves, he might be indicted at once or successively before several different commissions, on the chance of some one of them declaring itself competent to convict him; and, although conviction by one quæstio ousted the jurisdiction of the rest, acquittal by one of them could not be pleaded to an accusation before another. this was directly contrary to the rule of the roman civil law; and we may be sure that a people so sensitive as the romans to anomalies (or, as their significant phrase was, to _inelegancies_) in jurisprudence, would not long have tolerated it, had not the melancholy history of the quæstiones caused them to be regarded much more as temporary weapons in the hands of factions than as permanent institutions for the correction of crime. the emperors soon abolished this multiplicity and conflict of jurisdiction; but it is remarkable that they did not remove another singularity of the criminal law which stands in close connection with the number of the courts. the classifications of crimes which are contained even in the corpus juris of justinian are remarkably capricious. each quæstio had, in fact, confined itself to the crimes committed to its cognisance by its charter. these crimes, however, were only classed together in the original statute because they happened to call simultaneously for castigation at the moment of passing it. they had not therefore anything necessarily in common; but the fact of their constituting the particular subject-matter of trials before a particular quæstio impressed itself naturally on the public attention, and so inveterate did the association become between the offences mentioned in the same statute that, even when formal attempts were made by sylla and by the emperor augustus to consolidate the roman criminal law, the legislator preserved the old grouping. the statutes of sylla and augustus were the foundation of the penal jurisprudence of the empire, and nothing can be more extraordinary than some of the classifications which they bequeathed to it. i need only give a single example in the fact that _perjury_ was always classed with _cutting and wounding_ and with _poisoning_, no doubt because a law of sylla, the lex cornelia de sicariis et veneficis, had given jurisdiction over all these three forms of crime to the same permanent commission. it seems too that this capricious grouping of crimes affected the vernacular speech of the romans. people naturally fell into the habit of designating all the offences enumerated in one law by the first name on the list, which doubtless gave its style to the law court deputed to try them all. all the offences tried by the quæstio de adulteriis would thus be called adultery. i have dwelt on the history and characteristics of the roman quæstiones because the formation of a criminal jurisprudence is nowhere else so instructively exemplified. the last quæstiones were added by the emperor augustus, and from that time the romans may be said to have had a tolerably complete criminal law. concurrently with its growth, the analogous process had gone on, which i have called the conversion of wrongs into crimes, for, though the roman legislature did not extinguish the civil remedy for the more heinous offences, it offered the sufferer a redress which he was sure to prefer. still, even after augustus had completed his legislation, several offences continued to be regarded as wrongs, which modern societies look upon exclusively as crimes; nor did they become criminally punishable till some late but uncertain date, at which the law began to take notice of a new description of offences called in the digest _crimina extraordinaria_. these were doubtless a class of acts which the theory of roman jurisprudence treated merely as wrongs; but the growing sense of the majesty of society revolted from their entailing nothing worse on their perpetrator than the payment of money damages, and accordingly the injured person seems to have been permitted, if he pleased, to pursue them as crimes _extra ordinem_, that is by a mode of redress departing in some respect or other from the ordinary procedure. from the period at which these _crimina extraordinaria_ were first recognised, the list of crimes in the roman state must have been as long as in any community of the modern world. it is unnecessary to describe with any minuteness the mode of administering criminal justice under the roman empire, but it is to be noted that both its theory and practice have had powerful effect on modern society. the emperors did not immediately abolish the quæstiones, and at first they committed an extensive criminal jurisdiction to the senate, in which, however servile it might show itself in fact, the emperor was no more nominally than a senator like the rest. but some sort of collateral criminal jurisdiction had been claimed by the prince from the first; and this, as recollections of the free commonwealth decayed, tended steadily to gain at the expense of the old tribunals. gradually the punishment of crimes was transferred to magistrates directly nominated by the emperor and the privileges of the senate passed to the imperial privy council, which also became a court of ultimate criminal appeal. under these influences the doctrine, familiar to the moderns, insensibly shaped itself that the sovereign is the fountain of all justice and the depositary of all grace. it was not so much the fruit of increasing adulation and servility as of the centralisation of the empire which had by this time perfected itself. the theory of criminal justice had, in fact, worked round almost to the point from which it started. it had begun in the belief that it was the business of the collective community to avenge its own wrongs by its own hand; and it ended in the doctrine that the chastisement of crimes belonged in an especial manner to the sovereign as representative and mandatary of his people. the new view differed from the old one chiefly in the air of awfulness and majesty which the guardianship of justice appeared to throw around the person of the sovereign. this later roman view of the sovereign's relation to justice certainly assisted in saving modern societies from the necessity of travelling through the series of changes which i have illustrated by the history of the quæstiones. in the primitive law of almost all the races which have peopled western europe there are vestiges of the archaic notion that the punishment of crimes belongs to the general assembly of freemen; and there are some states--scotland is said to be one of them--in which the parentage of the existing judicature can be traced up to a committee of the legislative body. but the development of the criminal law was universally hastened by two causes, the memory of the roman empire and the influence of the church. on the one hand traditions of the majesty of the cæsars, perpetuated by the temporary ascendency of the house of charlemagne, were surrounding sovereigns with a prestige which a mere barbarous chieftain could never otherwise have acquired and were communicating to the pettiest feudal potentate the character of guardian of society and representative of the state. on the other hand, the church, in its anxiety to put a curb on sanguinary ferocity, sought about for authority to punish the graver misdeeds, and found it in those passages of scripture which speak with approval of the powers of punishment committed to the civil magistrate. the new testament was appealed to as proving that secular rulers exist for the terror of evildoers; the old testament, as laying down that "whoso sheddeth man's blood, by man shall his blood be shed." there can be no doubt, i imagine, that modern ideas on the subject of crime are based upon two assumptions contended for by the church in the dark ages--first, that each feudal ruler, in his degree, might be assimilated to the roman magistrates spoken of by saint paul; and next, that the offences which he was to chastise were those selected for prohibition in the mosaic commandments, or rather such of them as the church did not reserve to her own cognisance. heresy (supposed to be included in the first and second commandments), adultery, and perjury were ecclesiastical offences, and the church only admitted the co-operation of the secular arm for the purpose of inflicting severer punishment in cases of extraordinary aggravation. at the same time, she taught that murder and robbery with their various modifications were under the jurisdiction of civil rulers, not as an accident of their position but by the express ordinance of god. there is a passage in the writings of king alfred (kemble, ii. 209) which brings out into remarkable clearness the struggle of the various ideas that prevailed in his day as to the origin of criminal jurisdiction. it will be seen that alfred attributes it partly to the authority of the church and partly to that of the witan, while he expressly claims for treason against the lord the same immunity from ordinary rules which the roman law of majestas had assigned to treason against the cæsar. "after this it happened," he writes, "that many nations received the faith of christ, and there were many synods assembled throughout the earth, and among the english race also after they had received the faith of christ, both of holy bishops and of their exalted witan. they then ordained that, out of that mercy which christ had taught, secular lords, with their leave, might without sin take for every misdeed the _bot_ in money which they ordained; except in cases of treason against a lord, to which they dared not assign any mercy because almighty god adjudged none to them that despised him, nor did christ adjudge any to them which sold him to death; and he commanded that a lord should be loved like himself." index austin, 69, 171; _province of jurisprudence determined_, 4 ayala, 64 bentham, 18, 46, 54, 70, 147; _fragment on government_, 4 blackstone, 67, 89, 150, 152 _cambridge essays_, 1856, maine, 205, 212 capture in war, 145, 146 casuistry, 205, 206, 207 charlemagne, 62, 233 codes, attic of solon, 9; era of, 8; first introduced into the west, 10; hindoo law of menu, 10-12; justinian, 25, 27; napoléon, 104; roman, superiority over hindoo, 10-12; twelve tables of rome, 1, 8, 9, 12, 20 contract, austin on, 190; bentham on, 190; imperative law, 182; judicial and popular error, 181; law of nations, 181, 196, 197; literal or written, 194; origin lies in the family, 99; pact or convention, 184, 185; real, 195; roman, classification, 191, 192; consensual, 195-198; domestic system, 194; nexum, definition of, 185-189; rousseau, 181; sale, 188 conveyances and contracts, confusion between, 185-187; and mancipation, 185 _corpus juris civilis_, 26 creditors, powers of, in ancient system, 189 crimes and wrongs, confusion between, 231, 232; distinction between primitive and modern, 217, 218; kemble in _anglo-saxons_, 218 criminal law, athens, 224; degree of guilt, 223; four stages of primitive history, 226; influence of church, 233; primitive religious code, 218, 219; roman, crime against state, 219; b.c. 149, 225; origin of, 225; sentence of death, 227-229; theft, 222, 223; tribunals, 228-230; under emperors, 230-232 customary law, epoch of, 7, 8; hindoo, 4 dangers of law, rigidity, too rapid development, 44, 45 debtors, severity of ancient system, 189 equity, 172; early history of, 15; lord eldon on, 40; english, 40, 41; meaning of, 17; origin, 34, 35; roman compared with english, 40-42 feudalism, explanation of, 214 gaius, 90, 174, 220-223 grote, decline of kingly rule, 6; _history of greece_, 3, 5; law administered by aristocracies, 7 grotius, hugo, 56, 58, 59, 64; _de jure belli et pacis_, 205 homer, earliest notions of law derived from, 2, 3; themis, themistes, 2-5 indian (hindoo) law, _see_ separate headings codes, customary, primogeniture, property, testamentary law, village communities institutional treatise (justinian), 27 international law, 64; and occupancy, 145 law of nations (jus gentium), incorporation with roman law, 36, 37; origin of, 27-31 legal fictions, benefit of, 77; examples in english law, 18; in roman law, 15, 16; meaning, useful purpose of, 15, 16 legis actio sacramenti, gaius on, 220, 221 legislation, the agent of legal improvement, 17; differing from equity, legal fictions, 17, 18 _lettres persanes_, 183 maine, _cambridge essays_, 1856, 205, 212 mancipation, 120, 121, 163-169, 185 menu, laws of, 10-12 montesquieu, 49, 51, 183 natural law (law of nature), american law and, 56; antagonistic to historical method, 53; confusing past with present, 43; equality of man, 54-56; equality of sex, 90; feudalism, 62, 65; french history, 47, 48, 50, 53; french law, 56; greek interpretation of, 44; grotian system, 56, 58, 59, 64-66; incorporated with roman law, 36, 37; influence of stoics, 32, 33; modern international law, 56-60; most critical period, 50; modern society, 54; occupancy, 145-147, 153; origin of, 31, 32; private property, 164; rousseau on, 51; slavery, 95; territorial sovereignty, 60-63; testamentary law, 103, 104 occupancy, 144, 145; in roman law, 145 pascal, _provincial letters_, 207 prescriptions, 167, 168; and canon law, 168 primogeniture, celtic customs, 141, 142; feudal system, 135-137; hindoo law, 134, 137, 141; mahometan law, 142; roman law, 133, 134 property, natural modes of acquiring, 144 property law, ancient germanic, 165, ancient sclavonic, 165; descent in middle ages, 132; indian law, 165; origin of, 145; possession, 170, 172; private, ancient forms of transfer, 160, 162-164; roman, 60, 66, 166; cessio in jure, 170; edictum perpetuum, 37; emphyteusis, 175-178; gaius on, 174; justinian, 174; law of persons and things, 152; mancipation, 163, 169; possessory interdicts, 171; praetor's interdict, 172; res mancipi, 160-164, 173; res nec mancipi, 164; system of farming, 176; usucapion, 167, 169, 173 roman law, _see_ separate headings contracts, criminal, property, occupancy, testamentary; decemviral law, 20; definition of inheritance, 107; end of period of jurists, 40; influence of praetor, 38; intestacy, 127-130; law of inheritance, 111; leges corneliae, 24, 25; leges juliae, 25; marriage, 91; obligation in, 190, 191, 195, 197; pandects of justinian, 39; powers of praetor, 37, 39; praetorian edict, 24, 25; responsa prudentum, 20, 21, 24; reverence of romans for, 22; statute law, 25; twelve tables, 1, 8, 9, 12, 20 rousseau, on social contract, 181 savigny, 171; on occupancy, 150 slavery, american opinions of, 96; influence of law of nature upon, 97; roman system, 95-97 status, definition of, 100 testamentary law, adoption and testation, 114, 115; church's influence upon, 102; corporation, aggregate and sole, 110; hindoo law, 113, 114; hindoo compared with roman, 113; law of nature, 103, 104; roman law, 111, 112, 117-123; mancipation, 120, 123; praetorian testament, 123-125; twelve tables, 112, 119, 122; roman family, agnatic and cognatic relationship, 86-89; duties and rights of father, 85; effects of christianity, 92; family, the basis of state, 75, 76; kinship, 86, 88; modification of parental privileges, 84; origin of contract in, 99; origin of law of persons, 89; parental powers, 80-82, 88 theology, and jurisprudence, 208-210; moral, 204, 205 theories, based on roman doctrine, bentham, 69; blackstone, 67; differing from roman glossators, annotations of, 67; grotius, 67; jurisprudence, dissatisfaction with, 70; locke, 67; montesquieu, 68; patriarchal, 72-75 universal succession, 106; in roman law, 106, 107 "universatis juris," 105 village communities, indian, 153, 154, 156, 158; indian, compared with roman gens, 155; indian, elphinstone, _history of india_, 155, 156; russian 157 women, ancient rules defeated by natural law, 90; canon law, 93; english common law, 93, 94; roman family, 90, 91; gradual independence under roman law, 91, 92; roman, perpetual tutelage of, 90; under roman law, 89, 90; subordination to husband in middle ages, 92; subordination of roman to relations, 90 made at the temple press letchworth in great britain odd people being a popular description of singular races of man by captain mayne reid published by ticknor and fields, boston. this edition dated 1861. odd people, by captain mayne reid. ________________________________________________________________________ ________________________________________________________________________ odd people, by captain mayne reid. chapter one. bosjesmen, or bushmen. perhaps no race of people has more piqued the curiosity of the civilised world than those little yellow savages of south africa, known as the _bushmen_. from the first hour in which european nations became acquainted with their existence, a keen interest was excited by the stories told of their peculiar character and habits; and although they have been visited by many travellers, and many descriptions have been given of them, it is but truth to say, that the interest in them has not yet abated, and the bushmen of africa are almost as great a curiosity at this hour as they were when di gama first doubled the cape. indeed, there is no reason why this should not be, for the habits and personal appearance of these savages are just now as they were then, and our familiarity with them is not much greater. whatever has been added to our knowledge of their character, has tended rather to increase than diminish our curiosity. at first the tales related of them were supposed to be filled with wilful exaggerations, and the early travellers were accused of dealing too much in the marvellous. this is a very common accusation brought against the early travellers; and in some instances it is a just one. but in regard to the accounts given of the bushmen and their habits there has been far less exaggeration than might be supposed; and the more insight we obtain into their peculiar customs and modes of subsistence, the more do we become satisfied that almost everything alleged of them is true. in fact, it would be difficult for the most inventive genius to contrive a fanciful account, that would be much more curious or interesting than the real and _bona fide_ truth that can be told about this most peculiar people. where do the bushmen dwell? what is their country? these are questions not so easily answered, as in reality they are not supposed to possess any country at all, any more than the wild animals amidst which they roam, and upon whom they prey. there is no bushman's country upon the map, though several spots in southern africa have at times received this designation. it is not possible, therefore, to delineate the boundaries of their country, since it has no boundaries, any more than that of the wandering gypsies of europe. if the bushmen, however, have no country in the proper sense of the word, they have a "range," and one of the most extensive character-since it covers the whole southern portion of the african continent, from the cape of good hope to the twentieth degree of south latitude, extending east and west from the country of the cafires to the atlantic ocean. until lately it was believed that the bushman-range did not extend far to the north of the orange river; but this has proved an erroneous idea. they have recently "turned up" in the land of the dammaras, and also in the great kalahari desert, hundreds of miles north from the orange river and it is not certain that they do not range still nearer to the equatorial line--though it may be remarked that the country in that direction does not favour the supposition, not being of the peculiar nature of a bushman's country. the bushman requires a desert for his dwelling-place. it is an absolute necessity of his nature, as it is to the ostrich and many species of animals; and north of the twentieth degree of latitude, south africa does not appear to be of this character. the heroic livingstone has dispelled the long-cherished illusion of the geography about the "_great-sanded level_" of these interior regions; and, instead, disclosed to the world a fertile land, well watered, and covered with a profuse and luxuriant vegetation. in such a land there will be no bushmen. the limits we have allowed them, however, are sufficiently large,-fifteen degrees of latitude, and an equally extensive range from east to west. it must not be supposed, however, that they _populate_ this vast territory. on the contrary, they are only distributed over it _in spots_, in little communities, that have no relationship or connection with one another, but are separated by wide intervals, sometimes of hundreds of miles in extent. it is only in the desert tracts of south africa that the bushmen exist,--in the karoos, and treeless, waterless plains--among the barren ridges and rocky defiles--in the ravines formed by the beds of dried-up rivers--in situations so sterile, so remote, so wild and inhospitable as to offer a home to no other human being save the bushman himself. if we state more particularly the localities where the haunts of the bushman are to be found, we may specify the barren lands on both sides of the orange river,--including most of its headwaters, and down to its mouth,--and also the great kalahari desert. through all this extensive region the _kraals_ of the bushmen may be encountered. at one time they were common enough within the limits of the cape colony itself, and some half-caste remnants still exist in the more remote districts; but the cruel persecution of the _boers_ has had the effect of extirpating these unfortunate savages; and, like the elephant, the ostrich, and the eland, the true wild bushman is now only to be met with beyond the frontiers of the colony. about the origin of the bushmen we can offer no opinion. they are generally considered as a branch of the great hottentot family; but this theory is far from being an established fact. when south africa was first discovered and colonised, both hottentots and bushmen were found there, differing from each other just as they differ at this day; and though there are some striking points of resemblance between them, there are also points of dissimilarity that are equally as striking, if we regard the two people as one. in personal appearance there is a certain general likeness: that is, both are woolly-haired, and both have a chinese cast of features, especially in the form and expression of the eye. their colour too is nearly the same; but, on the other hand, the hottentots are larger than the bushmen. it is not in their persons, however, that the most essential points of dissimilarity are to be looked for, but rather in their mental characters; and here we observe distinctions so marked and antithetical, that it is difficult to reconcile them with the fact that these two people are of one race. whether a different habit of life has produced this distinctive character, or whether _it_ has influenced the habits of life, are questions not easily answered. we only know that a strange anomaly exists--the anomaly of two people being personally alike--that is, possessing physical characteristics that seem to prove them of the same race, while intellectually, as we shall presently see, they have scarce one character in common. the slight resemblance that exists between the languages of the two is not to be regarded as a proof of their common origin. it only shows that they have long lived in juxtaposition, or contiguous to each other; a fact which cannot be denied. in giving a more particular description of the bushman, it will be seen in what respect he resembles the true hottentot, and in what he differs from him, both physically and mentally, and this description may now be given. the bushman is the smallest man with whom we are acquainted; and if the terms "dwarf" and "pigmy" may be applied to any race of human beings, the south-african bushmen presents the fairest claim to these titles. he stands only 4 feet 6 inches upon his naked soles--never more than 4 feet 9, and not unfrequently is he encountered of still less height-even so diminutive as 4 feet 2. his wife is of still shorter stature, and this lilliputian lady is often the mother of children when the crown of her head is just 3 feet 9 inches above the soles of her feet. it has been a very common thing to contradict the assertion that these people are such pigmies in stature, and even dr livingstone has done so in his late magnificent work. the doctor states, very jocosely, that they are "not dwarfish--that the specimens brought to europe have been selected, like costermongers' dogs, for their extreme ugliness." but the doctor forgets that it is but from "the specimens brought to europe" that the above standard of the bushman's height has been derived, but from the testimony of numerous travellers--many of them as trustworthy as the doctor himself--from actual measurements made by them upon the spot. it is hardly to be believed that such men as sparmann and burchell, barrow and lichtenstein, harris, campbell, patterson, and a dozen others that might be mentioned, should all give an erroneous testimony on this subject. these travellers have differed notoriously on other points, but in this they all agree, that a bushman of five feet in height is a _tall_ man in his tribe. dr livingstone speaks of bushmen "six feet high," and these are the tribes lately discovered living so far north as the lake nagami. it is doubtful whether these are bushmen at all. indeed, the description given by the doctor, not only of their height and the colour of their skin, but also some hints about their intellectual character, would lead to the belief that he has mistaken some other people for bushmen. it must be remembered that the experience of this great traveller has been chiefly among the _bechuana_ tribes, and his knowledge of the bushman proper does not appear to be either accurate or extensive. no man is expected to know everybody; and amid the profusion of new facts, which the doctor has so liberally laid before the world, it would be strange if a few inaccuracies should not occur. perhaps we should have more confidence if this was the only one we are enabled to detect; but the doctor also denies that there is anything either terrific or majestic in the "roaring of the lion." thus speaks he: "the same feeling which has induced the modern painter to caricature the lion has led the sentimentalist to consider the lion's roar as the most terrific of all earthly sounds. we hear of the `majestic roar of the king of beasts.' to talk of the majestic roar of the lion is mere majestic twaddle." the doctor is certainly in error here. does he suppose that any one is ignorant of the character of the lion's roar? does he fancy that no one has ever heard it but himself? if it be necessary to go to south africa to take the true measure of a bushman, it is not necessary to make that long journey in order to obtain a correct idea of the compass of the lion's voice. we can hear it at home in all its modulations; and any one who has ever visited the zoological gardens in regent's park--nay, any one who chances to live within half a mile of that magnificent menagerie--will be very much disposed to doubt the correctness of the doctor's assertion. if there be a sound upon the earth above all others "majestic," a noise above all others "terrific," it is certainly the _roar_ of the lion. ask albert terrace and saint john's wood! but let us not be too severe upon the doctor. the world is indebted to him much more than to any other modern traveller, and all great men indulge occasionally in the luxury of an eccentric opinion. we have brought the point forward here for a special purpose,--to illustrate a too much neglected truth. error is not always on the side of _exaggeration_; but is sometimes also found in the opposite extreme of a too-squeamish moderation. we find the learned professor lichtenstein ridiculing poor old hernandez, the natural historian of mexico, for having given a description of certain fabulous animals--_fabulous_, he terms them, because to him they were odd and unknown. but it turns out that the old author was right, and the _animals exist_! how many similar misconceptions might be recorded of the buffons, and other closet philosophers--urged, too, with the most bitter zeal! incredulity carried too far is but another form of credulity. but to return to our proper theme, and complete the portrait of the bushman. we have given his height. it is in tolerable proportion to his other dimensions. when young, he appears stout enough; but this is only when a mere boy. at the age of sixteen he has reached all the manhood he is ever destined to attain; and then his flesh disappears; his body assumes a meagre outline; his arms and limbs grow thin; the calf disappears from his legs; the plumpness from his cheeks; and altogether he becomes as wretched-looking an object as it is possible to conceive in human shape. older, his skin grows dry, corrugated, and scaly; his bones protrude; and his knee, elbow, and ankle-joints appear like horny knobs placed at the ends of what more resemble long straight sticks than the arms and limbs of a human being. the colour of this creature may be designated a yellow-brown, though it is not easy to determine it to a shade. the bushman appears darker than he really is; since his skin serves him for a towel, and every species of dirt that discommodes his fingers he gets rid of by wiping it off on his arms, sides, or breast. the result is, that his whole body is usually coated over with a stratum of grease and filth, which has led to the belief that he regularly anoints himself--a custom common among many savage tribes. this, however, the bushman does not do: the smearing toilet is merely occasional or accidental, and consists simply in the fat of whatever flesh he has been eating being transferred from his fingers to the cuticle of his body. this is never washed off again--for water never touches the bushman's hide. such a use of water is entirely unknown to him, not even for washing his face. should he have occasion to cleanse his hands--which the handling of gum or some like substance sometimes compels him to do--he performs the operation, not with soap and water, but with the dry dung of cattle or some wild animal. a little rubbing of this upon his skin is all the purification the bushman believes to be needed. of course, the dirt darkens his complexion; but he has the vanity at times to brighten it up--not by making it whiter--but rather a brick-red. a little ochreous earth produces the colour he requires; and with this he smears his body all over--not excepting even the crown of his head, and the scant stock of wool that covers it. bushmen have been washed. it requires some scrubbing, and a plentiful application either of soda or soap, to reach the true skin and bring out the natural colour; but the experiment has been made, and the result proves that the bushman is not so black as, under ordinary circumstances, he appears. a yellow hue shines through the epidermis, somewhat like the colour of the chinese, or a european in the worst stage of jaundice--the eye only not having that complexion. indeed, the features of the bushman, as well as the hottentot, bear a strong similarity to those of the chinese, and the bushman's eye is essentially of the mongolian type. his hair, however, is entirely of another character. instead of being long, straight, and lank, it is short, crisp, and curly,--in reality, wool. its scantiness is a characteristic; and in this respect the bushman differs from the woolly-haired tribes both of africa and australasia. these generally have "fleeces" in profusion, whereas both hottentot and bushman have not enough to half cover their scalps; and between the little knot-like "kinks" there are wide spaces without a single hair upon them. the bushman's "wool" is naturally black, but red ochre and the sun soon convert the colour into a burnt reddish hue. the bushman has no beard or other hairy encumbrances. were they to grow, he would root them out as useless inconveniences. he has a low-bridged nose, with wide flattened nostrils; an eye that appears a mere slit between the eyelids; a pair of high cheek-bones, and a receding forehead. his lips are not thick, as in the negro, and he is furnished with a set of fine white teeth, which, as he grows older, do not decay, but present the singular phenomenon of being regularly worn down to the stumps--as occurs to the teeth of sheep and other ruminant animals. notwithstanding the small stature of the bushman, his frame is wiry and capable of great endurance. he is also as agile as an antelope. from the description above given, it will be inferred that the bushman is no beauty. neither is the bushwoman; but, on the contrary, both having passed the period of youth, become absolutely ugly,--the woman, if possible, more so than the man. and yet, strange to say, many of the bush-girls, when young, have a cast of prettiness almost amounting to beauty. it is difficult to tell in what this beauty consists. something, perhaps, in the expression of the oblique almond-shaped eye, and the small well-formed mouth and lips, with the shining white teeth. their limbs, too, at this early age, are often well-rounded; and many of them exhibit forms that might serve as models for a sculptor. their feet are especially well-shaped, and, in point of size, they are by far the smallest in the world. had the chinese ladies been gifted by nature with such little feet, they might have been spared the torture of compressing them. the foot of a bushwoman rarely measures so much as six inches in length; and full-grown girls have been seen, whose feet, submitted to the test of an actual measurement, proved but a very little over four inches! intellectually, the bushman does not rank so low as is generally believed. he has a quick, cheerful mind, that appears ever on the alert,--as may be judged by the constant play of his little piercing black eye,--and though he does not always display much skill in the manufacture of his weapons, he can do so if he pleases. some tribes construct their bows, arrows, fish-baskets, and other implements and utensils with admirable ingenuity; but in general the bushman takes no pride in fancy weapons. he prefers having them effective, and to this end he gives proof of his skill in the manufacture of _most deadly poisons_ with which to anoint his arrows. furthermore, he is ever active and ready for action; and in this his mind is in complete contrast with that of the hottentot, with whom indolence is a predominant and well-marked characteristic. the bushman, on the contrary, is always on the _qui vive_; always ready to be doing where there is anything to do; and there is not much opportunity for him to be idle, as he rarely ever knows where the next meal is to come from. the ingenuity which he displays in the capture of various kinds of game,-far exceeding that of other hunting tribes of africa,--as also the cunning exhibited by him while engaged in cattle-stealing and other plundering forays, prove an intellectual capacity more than proportioned to his diminutive body; and, in short, in nearly every mental characteristic does he differ from the supposed cognate race--the hottentot. it would be hardly just to give the bushman a character for high courage; but, on the other hand, it would be as unjust to charge him with cowardice. small as he is, he shows plenty of "pluck," and when brought to bay, his motto is, "no surrender." he will fight to the death, discharging his poisoned arrows as long as he is able to bend a bow. indeed, he has generally been treated to shooting, or clubbing to death, wherever and whenever caught, and he knows nothing of _quarter_. just as a badger he ends his life,--his last struggle being an attempt to do injury to his assailant. this trait in his character has, no doubt, been strengthened by the inhuman treatment that, for a century, he has been receiving from the brutal boers of the colonial frontier. the costume of the bushman is of the most primitive character,-differing only from that worn by our first parents, in that the fig-leaf used by the men is a patch of jackal-skin, and that of the women a sort of fringe or bunch of leather thongs, suspended around the waist by a strap, and hanging down to the knees. it is in reality a little apron of dressed skin; or, to speak more accurately, two of them, one above the other, both cut into narrow strips or thongs, from below the waist downward. other clothing than this they have none, if we except a little skin _kaross_, or cloak, which is worn over their shoulders;-that of the women being provided with a bag or hood at the top, that answers the naked "piccaninny" for a nest or cradle. sandals protect their feet from the sharp stones, and these are of the rudest description,--merely a piece of the thick hide cut a little longer and broader than the soles of the feet, and fastened at the toes and round the ankles by thongs of sinews. an attempt at ornament is displayed in a leathern skullcap, or more commonly a circlet around the head, upon which are sewed a number of "cowries," or small shells of the _cyprea moneta_. it is difficult to say where these shells are procured,--as they are not the product of the bushman's country, but are only found on the far shores of the indian ocean. most probably he obtains them by barter, and after they have passed through many hands; but they must cost the bushman dear, as he sets the highest value upon them. other ornaments consist of old brass or copper buttons, attached to the little curls of his woolly hair; and, among the women, strings of little pieces of ostrich egg-shells, fashioned to resemble beads; besides a perfect load of leathern bracelets on the arms, and a like profusion of similar circlets on the limbs, often reaching from the knee to the ankle-joint. red ochre over the face and hair is the fashionable toilette, and a perfumery is obtained by rubbing the skin with the powdered leaves of the "buku" plant, a species of _diosma_. according to a quaint old writer, this causes them to "stink like a poppy," and would be highly objectionable, were it not preferable to the odour which they have without it. they do not _tattoo_, nor yet perforate the ears, lips, or nose,-practices so common among savage tribes. some instances of nose-piercing have been observed, with the usual appendage of a piece of wood or porcupine's quill inserted in the septum, but this is a custom rather of the caffres than bushmen. among the latter it is rare. a grand ornament is obtained by smearing the face and head with a shining micaceous paste, which is procured from a cave in one particular part of the bushman's range; but this, being a "far-fetched" article, is proportionably scarce and dear. it is only a fine belle who can afford to give herself a coat of _blink-slip_,--as this sparkling pigment is called by the colonists. many of the women, and men as well, carry in their hands the bushy tail of a jackal. the purpose is to fan off the flies, and serve also as a "wipe," to disembarrass their bodies of perspiration when the weather chances to be over hot. the domicile of the bushman next merits description. it is quite as simple and primitive as his dress, and gives him about equal trouble in its construction. if a cave or cleft can be found in the rocks, of sufficient capacity to admit his own body and those of his family--never a very large one--he builds no house. the cave contents him, be it ever so tight a squeeze. if there be no cave handy, an overhanging rock will answer equally as well. he regards not the open sides, nor the draughts. it is only the rain which he does not relish; and any sort of a shed, that will shelter him from that, will serve him for a dwelling. if neither cave, crevice, nor impending cliff can be found in the neighbourhood, he then resorts to the alternative of housebuilding; and his style of architecture does not differ greatly from that of the orang-outang. a bush is chosen that grows near to two or three others,--the branches of all meeting in a common centre. of these branches the builder takes advantage, fastening them together at the ends, and wattling some into the others. over this framework a quantity of grass is scattered in such a fashion as to cast off a good shower of rain, and then the "carcass" of the building is considered complete. the inside work remains yet to be done, and that is next set about. a large roundish or oblong hole is scraped out in the middle of the floor. it is made wide enough and deep enough to hold the bodies of three or four bush-people, though a single large caffre or dutchman would scarcely find room in it. into this hole is flung a quantity of dry grass, and arranged so as to present the appearance of a gigantic nest. this nest, or lair, becomes the bed of the bushman, his wife, or wives,--for he frequently keeps two,--and the other members of his family. coiled together like monkeys, and covered with their skin karosses, they all sleep in it,--whether "sweetly" or "soundly," i shall not take upon me to determine. it is supposed to be this fashion of literally "sleeping in the bush," as also the mode by which he skulks and hides among bushes,--invariably taking to them when pursued,--that has given origin to the name bushman, or _bosjesman_, as it is in the language of the colonial dutch. this derivation is probable enough, and no better has been offered. the bushman sometimes constructs himself a more elaborate dwelling; that is, some bushmen;--for it should be remarked that there are a great many tribes or communities of these people, and they are not all so very low in the scale of civilisation. none, however, ever arrive at the building of a house,--not even a hut. a tent is their highest effort in the building line, and that is of the rudest description, scarce deserving the name. its covering is a mat, which they weave out of a species of rush that grows along some of the desert streams; and in the fabrication of the covering they display far more ingenuity than in the planning or construction of the tent itself. the mat, in fact, is simply laid over two poles, that are bent into the form of an arch, by having both ends stuck into the ground. a second piece of matting closes up one end; and the other, left open, serves for the entrance. as a door is not deemed necessary, no further construction is required, and the tent is "pitched" complete. it only remains to scoop out the sand, and make the _nest_ as already described. it is said that the goths drew their ideas of architecture from the aisles of the oak forest; the chinese from their mongolian tents; and the egyptians from their caves in the rocks. beyond a doubt, the bushman has borrowed his from the nest of the ostrich! it now becomes necessary to inquire how the bushman spends his time? how he obtains subsistence? and what is the nature of his food? all these questions can be answered, though at first it may appear difficult to answer them. dwelling, as he always does, in the very heart of the desert, remote from forests that might furnish him with some sort of food--trees that might yield fruit,--far away from a fertile soil, with no knowledge of agriculture, even if it were near,--with no flocks or herds; neither sheep, cattle, horses, nor swine,--no domestic animals but his lean, diminutive dogs,--how does this bushman procure enough to eat? what are his sources of supply? we shall see. being neither a grazier nor a farmer, he has other means of subsistence,--though it must be confessed that they are of a precarious character, and often during his life does the bushman find himself on the very threshold of starvation. this, however, results less from the parsimony of nature than the bushman's own improvident habits,--a trait in his character which is, perhaps, more strongly developed in him than any other. we shall have occasion to refer to it presently. his first and chief mode of procuring his food is by the chase: for, although he is surrounded by the sterile wilderness, he is not the only animated being who has chosen the desert for his home. several species of birds--one the largest of all--and quadrupeds, share with the bushman the solitude and safety of this desolate region. the rhinoceros can dwell there; and in numerous streams are found the huge hippopotami; whilst quaggas, zebras, and several species of antelope frequent the desert plains as their favourite "stamping" ground. some of these animals can live almost without water; but when they do require it, what to them is a gallop of fifty miles to some well-known "vley" or pool? it will be seen, therefore, that the desert has its numerous denizens. all these are objects of the bushman's pursuit, who follows them with incessant pertinacity--as if he were a beast of prey, furnished by nature with the most carnivorous propensities. in the capture of these animals he displays an almost incredible dexterity and cunning. his mode of approaching the sly ostrich, by disguising himself in the skin of one of these birds, is so well-known that i need not describe it here; but the _ruses_ he adopts for capturing or killing other sorts of game are many of them equally ingenious. the pit-trap is one of his favourite contrivances; and this, too, has been often described,--but often very erroneously. the pit is not a large hollow,--as is usually asserted,--but rather of dimensions proportioned to the size of the animal that is expected to fall into it. for game like the rhinoceros or _eland_ antelope, it is dug of six feet in length and three in width at the top; gradually narrowing to the bottom, where it ends in a trench of only twelve inches broad. six or seven feet is considered deep enough; and the animal, once into it, gets so wedged at the narrow bottom part as to be unable to make use of its legs for the purpose of springing out again. sometimes a sharp stake or two are used, with the view of _impaling_ the victim; but this plan is not always adopted. there is not much danger of a quadruped that drops in ever getting out again, till he is dragged out by the bushman in the shape of a carcass. the bushman's ingenuity does not end here. besides the construction of the trap, it is necessary the game should be guided into it. were this not done, the pit might remain a long time empty, and, as a necessary consequence, so too might the belly of the bushman. in the wide plain few of the gregarious animals have a path which they follow habitually; only where there is a pool may such beaten trails be found, and of these the bushman also avails himself; but they are not enough. some artificial means must be used to make the traps pay--for they are not constructed without much labour and patience. the plan adopted by the bushman to accomplish this exhibits some points of originality. he first chooses a part of the plain which lies between two mountains. no matter if these be distant from each other: a mile, or even two, will not deter the bushman from his design. by the help of his whole tribe-men, women, and children--he constructs a fence from one mountain to the other. the material used is whatever may be most ready to the hand: stones, sods, brush, or dead timber, if this be convenient. no matter how rude the fence: it need not either be very high. he leaves several gaps in it; and the wild animals, however easily they might leap over such a puny barrier, will, in their ordinary way, prefer to walk leisurely through the gaps. in each of these, however, there is a dangerous hole--dangerous from its depth as well as from the cunning way in which it is concealed from the view--in short, in each gap there is a _pit-fall_. no one--at least no animal except the elephant--would ever suspect its presence; the grass seems to grow over it, and the sand lies unturned, just as elsewhere upon the plain. what quadruped could detect the cheat? not any one except the sagacious elephant. the stupid eland tumbles through; the gemsbok goes under; and the rhinoceros rushes into it as if destined to destruction. the bushman sees this from his elevated perch, glides forward over the ground, and spears the struggling victim with his _poisoned assagai_. besides the above method of capturing game the bushman also uses the bow and arrows. this is a weapon in which he is greatly skilled; and although both bow and arrows are as tiny as if intended for children's toys, they are among the deadliest of weapons, their fatal effect lies not in the _size_ of the wound they are capable of inflicting, but in the peculiar mode in which the barbs of the arrows are prepared. i need hardly add that they are dipped in poison;--for who has not heard of the poisoned arrows of the african bushmen? both bow and arrows are usually rude enough in their construction, and would appear but a trumpery affair, were it not for a knowledge of their effects. the bow is a mere round stick, about three feet long, and slightly bent by means of its string of twisted sinews. the arrows are mere reeds, tipped with pieces of bone, with a split ostrich-quill lapped behind the head, and answering for a barb. this arrow the bushman can shoot with tolerable certainty to a distance of a hundred yards, and he can even project it farther by giving a slight elevation to his aim. it signifies not whether the force with which it strikes the object be ever so slight, if it only makes an entrance. even a scratch from its point will sometimes prove fatal. of course the danger dwells altogether in the poison. were it not for that, the bushman, from his dwarfish stature and pigmy strength, would be a harmless creature indeed. the poison he well knows how to prepare, and he can make it of the most "potent spell," when the "materials" are within his reach. for this purpose he makes use of both vegetable and animal substances, and a mineral is also employed; but the last is not a poison, and is only used to give consistency to the liquid, so that it may the better adhere to the arrow. the vegetable substances are of various kinds. some are botanically known: the bulb of _amaryllis disticha_,--the gum of a _euphorbia_,--the sap of a species of sumac (_rhus_),--and the nuts of a shrubby plant, by the colonists called _woolf-gift_ (wolf-poison). the animal substance is the fluid found in the fangs of venomous serpents, several species of which serve the purpose of the bushman: as the little "horned snake,"--so called from the scales rising prominently over its eyes; the "yellow snake," or south-african cobra (_naga haje_); the "puff adder," and others. from all these he obtains the ingredients of his deadly ointment, and mixes them, not all together; for he cannot always procure them all in any one region of the country in which he dwells. he makes his poison, also, of different degrees of potency, according to the purpose for which he intends it; whether for hunting or war. with sixty or seventy little arrows, well imbued with this fatal mixture, and carefully placed in his quiver of tree bark or skin,--or, what is not uncommon, stuck like a coronet around his head,--he sallies forth, ready to deal destruction either to game, animals, or to human enemies. of these last he has no lack. every man, not a bushman, he deems his enemy; and he has some reason for thinking so. truly may it be said of him, as of ishmael, that his "hand is against every man, and every man's hand against him;" and such has been his unhappy history for ages. not alone have the boers been his pursuers and oppressors, but all others upon his borders who are strong enough to attack him,--colonists, caffres, and bechuanas, all alike,--not even excepting his supposed kindred, the hottentots. not only does no fellow-feeling exist between bushman and hottentot, but, strange to say, they hate each other with the most rancorous hatred. the bushman will plunder a namaqua hottentot, a griqua, or a gonaqua,--plunder and murder him with as much ruthlessness, or even more, than he would the hated caffre or boer. all are alike his enemies,--all to be plundered and massacred, whenever met, and the thing appears possible. we are speaking of plunder. this is another source of supply to the bushman, though one that is not always to be depended upon. it is his most dangerous method of obtaining a livelihood, and often costs him his life. he only resorts to it when all other resources fail him, and food is no longer to be obtained by the chase. he makes an expedition into the settlements,--either of the frontier boers, caffres, or hottentots,--whichever chance to live most convenient to his haunts. the expedition, of course, is by night, and conducted, not as an open _foray_, but in secret, and by stealth. the cattle are _stolen_, not _reeved_, and driven off while the owner and his people are asleep. in the morning, or as soon as the loss is discovered, a pursuit is at once set on foot. a dozen men, mounted and armed with long muskets (_roers_), take the _spoor_ of the spoilers, and follow it as fast as their horses will _carry_ them. a dozen boers, or even half that number, is considered a match for a whole tribe of bushmen, in any fight which may occur in the open plain, as the boers make use of their long-range guns at such a distance that the bushmen are shot down without being able to use their poisoned arrows; and if the thieves have the fortune to be overtaken before they have got far into the desert, they stand a good chance of being terribly chastised. there is no quarter shown them. such a thing as mercy is never dreamt of,--no sparing of lives any more than if they were a pack of hyenas. the bushmen may escape to the rocks, such of them as are not hit by the bullets; and there the boers know it would be idle to follow them. like the klipspringer antelope, the little savages can bound from rock to rock, and cliff to cliff, or hide like partridges among crevices, where neither man nor horse can pursue them. even upon the level plain--if it chance to be stony or intersected with breaks and ravines--a horseman would endeavour to overtake them in vain, for these yellow imps are as swift as ostriches. when the spoilers scatter thus, the boer may recover his cattle, but in what condition? that he has surmised already, without going among the herd. he does not expect to drive home one half of them; perhaps not one head. on reaching the flock he finds there is not one without a wound of some kind or other: a gash in the flank, the cut of a knife, the stab of an assagai, or a poisoned arrow--intended for the boer himself--sticking between the ribs. this is the sad spectacle that meets his eyes; but he never reflects that it is the result of his own cruelty,--he never regards it in the light of retribution. had he not first hunted the bushman to make him a slave, to make bondsmen and bondsmaids of his sons and daughters, to submit them to the caprice and tyranny of his great, strapping _frau_, perhaps his cattle would have been browsing quietly in his fields. the poor bushman, in attempting to take them, followed but his instincts of hunger: in yielding them up he obeyed but the promptings of revenge. it is not always that the bushman is thus overtaken. he frequently succeeds in carrying the whole herd to his desert fastness; and the skill which he exhibits in getting them there is perfectly surprising. the cattle themselves are more afraid of him than of a wild beast, and run at his approach; but the bushman, swifter than they, can glide all around them, and keep them moving at a rapid rate. he uses stratagem also to obstruct or baffle the pursuit. the route he takes is through the driest part of the desert,--if possible, where water does not exist at all. the cattle suffer from thirst, and bellow from the pain; but the bushman cares not for that, so long as he is himself served. but how is he served? there is no water, and a bushman can no more go without drinking than a boer: how then does he provide for himself on these long expeditions? all has been pre-arranged. while off to the settlements, the bushman's wife has been busy. the whole _kraal_ of women--young and old--have made an excursion halfway across the desert, each carrying ostrich egg-shells, as much as her kaross will hold, each shell full of water. these have been deposited at intervals along the route in secret spots known by marks to the bushmen, and this accomplished the women return home again. in this way the plunderer obtains his supply of water, and thus is he enabled to continue his journey over the arid _karroo_. the pursuers become appalled. they are suffering from thirst--their horses sinking under them. perhaps they have lost their way? it would be madness to proceed further. "let the cattle go this time?" and with this disheartening reflection they give up the pursuit, turn the heads of their horses, and ride homeward. there is a feast at the bushman's kraal--and such a feast! not _one_ ox is slaughtered, but a score of them all at once. they kill them, as if from very wantonness; and they no longer eat, but raven on the flesh. for days the feasting is kept up almost continuously,--even at night they must wake up to have a midnight meal! and thus runs the tale, till every ox has been eaten. they have not the slightest idea of a provision for the future; even the lower animals seem wiser in this respect. they do not think of keeping a few of the plundered cattle at pasture to serve them for a subsequent occasion. they give the poor brutes neither food nor drink; but, having penned them up in some defile of the rocks, leave them to moan and bellow, to drop down and die. on goes the feasting, till all are finished; and even if the flesh has turned putrid, this forms not the slightest objection: it is eaten all the same. the kraal now exhibits an altered spectacle. the starved, meagre wretches, who were seen flitting among its tents but a week ago, have all disappeared. plump bodies and distended abdomens are the order of the day; and the profile of the bushwoman, taken from the neck to the knees, now exhibits the outline of the letter s. the little imps leap about, tearing raw flesh,--their yellow cheeks besmeared with blood,-and the lean curs seem to have been exchanged for a pack of fat, petted poodles. but this scene must some time come to an end, and at length it does end. all the flesh is exhausted, and the bones picked clean. a complete reaction comes over the spirit of the bushman. he falls into a state of languor,--the only time when he knows such a feeling,--and he keeps his kraal, and remains idle for days. often he sleeps for twenty-four hours at a time, and wakes only to go to sleep again. he need not rouse himself with the idea of getting something to eat: there is not a morsel in the whole kraal, and he knows it. he lies still, therefore,-weakened with hunger, and overcome with the drowsiness of a terrible lassitude. fortunate for him, while in this state, if those bold vultures-attracted by the _debris_ of his feast, and now high wheeling in the air--be not perceived from afar; fortunate if they do not discover the whereabouts of his kraal to the vengeful pursuer. if they should do so, he has made his last foray and his last feast. when the absolute danger of starvation at length compels our bushman to bestir himself, he seems to recover a little of his energy, and once more takes to hunting, or, if near a stream, endeavours to catch a few fish. should both these resources fail, he has another,--without which he would most certainly starve,--and perhaps this may be considered his most important source of supply, since it is the most constant, and can be depended on at nearly all seasons of the year. weakened with hunger, then, and scarce equal to any severer labour, he goes _out hunting--this time insects, not quadrupeds_. with a stout stick inserted into a stone at one end and pointed at the other, he proceeds to the nests of the white ants (_termites_), and using the point of the stick,--the stone serving by its weight to aid the force of the blow,--he breaks open the hard, gummy clay of which the hillock is formed. unless the _aard-vark_ and the _pangolin_--two very different kinds of ant-eaters--have been there before him, he finds the chambers filled with the eggs of the ants, the insects themselves, and perhaps large quantities of their _larvae_. all are equally secured by the bushman, and either devoured on the spot, or collected into a skin bag, and carried back to his kraal. he hunts also another species of ants that do not build nests or "hillocks," but bring forth their young in hollows under the ground. these make long galleries or covered ways just under the surface, and at certain periods--which the bushman knows by unmistakable signs--they become very active, and traverse these underground galleries in thousands. if the passages were to be opened above, the ants would soon make off to their caves, and but a very few could be captured. the bushman, knowing this, adopts a stratagem. with the stick already mentioned he pierces holes of a good depth down; and works the stick about, until the sides of the holes are smooth and even. these he intends shall serve him as pitfalls; and they are therefore made in the covered ways along which the insects are passing. the result is, that the little creatures, not suspecting the existence of these deep wells, tumble head foremost into them, and are unable to mount up the steep smooth sides again, so that in a few minutes the hole will be filled with ants, which the bushman scoops out at his leisure. another source of supply which he has, and also a pretty constant one, consists of various roots of the tuberous kind, but more especially bulbous roots, which grow in the desert. they are several species of _ixias_ and _mesembryanthemums_,--some of them producing bulbs of a large size, and deeply buried underground. half the bushman's and bushwoman's time is occupied in digging for these roots; and the spade employed is the stone-headed staff already described. ostrich eggs also furnish the bushman with many a meal; and the huge shells of these eggs serve him for water-vessels, cups, and dishes. he is exceedingly expert in tracking up the ostrich, and discovering its nest. sometimes he finds a nest in the absence of the birds; and in a case of this kind he pursues a course of conduct that is _peculiarly bushman_. having removed all the eggs to a distance, and concealed them under some bush, he returns to the nest and ensconces himself in it. his diminutive body, when close squatted, cannot be perceived from a distance, especially when there are a few bushes around the nest, as there usually are. thus concealed he awaits the return of the birds, holding his bow and poisoned arrows ready to salute them as soon as they come within range. by this _ruse_ he is almost certain of killing either the cock or hen, and not infrequently both--when they do not return together. lizards and land-tortoises often furnish the bushman with a meal; and the shell of the latter serves him also for a dish; but his period of greatest plenty is when the locusts _appear_. then, indeed, the bushman is no longer in want of a meal; and while these creatures remain with him, he knows no hunger. he grows fat in a trice, and his curs keep pace with him--for they too greedily devour the locusts. were the locusts a constant, or even an annual visitor, the bushman would be a rich man--at all events his wants would be amply supplied. unfortunately for him, but fortunately for everybody else, these terrible destroyers of vegetation only come now and then--several years often intervening between their visits. the bushmen have no religion whatever; no form of marriage--any more than mating together like wild beasts; but they appear to have some respect for the memory of their dead, since they bury them--usually erecting a large pile of stones, or "cairn," over the body. they are far from being of a melancholy mood. though crouching in their dens and caves during the day, in dread of the boers and other enemies, they come forth at night to chatter and make merry. during fine moonlights they dance all night, keeping up the _ball_ till morning; and in their kraals may be seen a circular spot--beaten hard and smooth with their feet--where these dances are performed. they have no form of government--not so much as a head man or chief. even the father of the family possesses no authority, except such as superior strength may give him; and when his sons are grown up and become as strong as he is, this of course also ceases. they have no tribal organisation; the small communities in which they live being merely so many individuals accidentally brought together, often quarrelling and separating from one another. these communities rarely number over a hundred individuals, since, from the nature of their country, a large number could not find subsistence in any one place. it follows, therefore, that the bushman race must ever remain widely scattered--so long as they pursue their present mode of life--and no influence has ever been able to win them from it. missionary efforts made among them have all proved fruitless. the desert seems to have been created for them, as they for the desert; and when transferred elsewhere, to dwell amidst scenes of civilised life, they always yearn to return to their wilderness home. truly are these pigmy savages an odd people! chapter two. the amazonian indians. in glancing at the map of the american continent, we are struck by a remarkable analogy between the geographical features of its two great divisions--the north and the south,--an analogy amounting almost to a symmetrical parallelism. each has its "mighty" mountains--the _cordilleras of the andes_ in the south, and the _cordilleras of the sierra madre_ (rocky mountains) in the north--with all the varieties of volcano and eternal snow. each has its secondary chain: in the north, the _nevadas_ of california and oregon; in the south, the _sierras_ of caraccas and the group of guiana; and, if you wish to render the parallelism complete, descend to a lower elevation, and set the alleghanies of the united states against the mountains of brazil--both alike detached from all the others. in the comparison we have exhausted the mountain chains of both divisions of the continent. if we proceed further, and carry it into minute detail, we shall find the same correspondence--ridge for ridge, chain for chain, peak for peak;--in short, a most singular equilibrium, as if there had been a design that one half of this great continent should balance the other! from the mountains let us proceed to the rivers, and see how _they_ will correspond. here, again, we discover a like parallelism, amounting almost to a rivalry. each continent (for it is proper to style them so) contains the largest river in the world. if we make _length_ the standard, the north claims precedence for the mississippi; if _volume of water_ is to be the criterion, the south is entitled to it upon the merits of the amazon. each, too, has its numerous branches, spreading into a mighty "tree"; and these, either singly or combined, form a curious equipoise both in length and magnitude. we have only time to set list against list, tributaries of the great northern river against tributaries of its great southern compeer,--the ohio and illinois, the yellowstone and platte, the kansas and osage, the arkansas and red, against the madeira and purus, the ucayali and huallaga, the japura and negro, the xingu and tapajos. of other river systems, the saint lawrence may be placed against the la plata, the oregon against the orinoco, the mackenzie against the magdalena, and the rio bravo del norte against the tocantins; while the two colorados--the brazos and alabama--find their respective rivals in the essequibo, the paranahybo, the pedro, and the patagonian negro; and the san francisco of california, flowing over sands of gold, is balanced by its homonyme of brazil, that has its origin in the land of diamonds. to an endless list might the comparison be carried. we pass to the plains. _prairies_ in the north, _llanos_ and _pampas_ in the south, almost identical in character. _of the plateaux_ or tablelands, those of mexico, la puebla, perote, and silver potosi in the north; those of quito, bogota, cusco, and gold potosi in the south; of the desert plains, utah and the llano estacado against atacama and the deserts of patagonia. even the great salt lake has its parallel in titicaca; while the "salinas" of new mexico and the upland prairies, are represented by similar deposits in the gran chaco and the pampas. we arrive finally at the forests. though unlike in other respects, we have here also a rivalry in magnitude,--between the vast timbered expanse stretching from arkansas to the atlantic shores, and that which covers the valley of the amazon. these _were_ the two greatest forests on the face of the earth. i say _were_, for one of them no longer exists; at least, it is no longer a continuous tract, but a collection of forests, opened by the axe, and intersected by the clearings of the colonist. the other still stands in all its virgin beauty and primeval vigour, untouched by the axe, undefiled by fire, its path scarce trodden by human feet, its silent depths to this hour unexplored. it is with this forest and its denizens we have to do. here then let us terminate the catalogue of similitudes, and concentrate our attention upon the particular subject of our sketch. the whole _valley_ of the amazon--in other words, the tract watered by this great river and its tributaries--may be described as one unbroken forest. we now know the borders of this forest with considerable exactness, but to trace them here would require a too lengthened detail. suffice it to say, that lengthwise it extends from the mouth of the amazon to the foothills of the peruvian andes, a distance of 2,500 miles. in breadth it varies, beginning on the atlantic coast with a breadth of 400 miles, which widens towards the central part of the continent till it attains to 1,500, and again narrowing to about 1,000, where it touches the eastern slope of the andes. that form of leaf known to botanists as "obovate" will give a good idea of the figure of the great amazon forest, supposing the small end or shank to rest on the atlantic, and the broad end to extend along the semicircular concavity of the andes, from bolivia on the south to new granada on the north. in all this vast expanse of territory there is scarce an acre of open ground, if we except the water-surface of the rivers and their bordering "lagoons," which, were they to bear their due proportions on a map, could scarce be represented by the narrowest lines, or the most inconspicuous dots. the grass plains which embay the forest on its southern edge along the banks of some of its brazilian tributaries, or those which proceed like spurs from the llanos of venezuela, do not in any place approach the amazon itself, and there are many points on the great river which may be taken as centres, and around which circles may be drawn, having diameters 1,000 miles in length, the circumferences of which will enclose nothing but timbered land. the main stream of the amazon, though it intersects this grand forest, does not _bisect_ it, speaking with mathematical precision. there is rather more timbered surface to the southward than that which extends northward, though the inequality of the two divisions is not great. it would not be much of an error to say that the amazon river cuts the forest in halves. at its mouth, however, this would not apply; since for the first 300 miles above the embouchure of the river, the country on the northern side is destitute of timber. this is occasioned by the projecting spurs of the guiana mountains, which on that side approach the amazon in the shape of naked ridges and grass-covered hills and plains. it is not necessary to say that the great forest of the amazon is a tropical one--since the river itself, throughout its whole course, almost traces the line of the equator. its vegetation, therefore, is emphatically of a tropical character; and in this respect it differs essentially from that of north america, or rather, we should say, of canada and the united states. it is necessary to make this limitation, because the forests of the tropical parts of north america, including the west-indian islands, present a great similitude to that of the amazon. it is not only in the genera and species of trees that the _sylva_ of the temperate zone differs from that of the torrid; but there is a very remarkable difference in the distribution of these genera and species. in a great forest of the north, it is not uncommon to find a large tract covered with a single species of trees,--as with pines, oaks, poplars, or the red cedar (_juniperus virginiana_). this arrangement is rather the rule than the exception; whereas, in the tropical forest, the rule is reversed, except in the case of two or three species of palms (_mauritia_ and _euterpe_), which sometimes exclusively cover large tracts of surface. of other trees, it is rare to find even a clump or grove standing together--often only two or three trees, and still more frequently, a single individual is observed, separated from those of its own kind by hundreds of others, all differing in order, genus, and species. i note this peculiarity of the tropic forest, because it exercises, as may easily be imagined, a direct influence upon the economy of its human occupants--whether these be savage or civilised. even the habits of the lower animals--beasts and birds--are subject to a similar influence. it would be out of place here to enumerate the different kinds of trees that compose this mighty wood,--a bare catalogue of their names would alone fill many pages,--and it would be safe to say that if the list were given as now known to botanists, it would comprise scarce half the species that actually exist in the valley of the amazon. in real truth, this vast garden of god is yet unexplored by man. its border walks and edges have alone been examined; and the enthusiastic botanist need not fear that he is too late in the field. a hundred years will elapse before this grand _parterre_ can be exhausted. at present, a thorough examination of the botany of the amazon valley would be difficult, if not altogether impossible, even though conducted on a grand and expensive scale. there are several reasons for this. its woods are in many places absolutely impenetrable--on account either of the thick tangled undergrowth, or from the damp, spongy nature of the soil. there are no roads that could be traversed by horse or man; and the few paths are known only to the wild savage,--not always passable even by him. travelling can only be done by water, either upon the great rivers, or by the narrow creeks (igaripes) or lagoons; and a journey performed in this fashion must needs be both tedious and indirect, allowing but a limited opportunity for observation. horses can scarce be said to exist in the country, and cattle are equally rare--a few only are found in one or two of the large portuguese settlements on the main river--and the jaguars and blood-sucking bats offer a direct impediment to their increase. contrary to the general belief, the tropical forest is not the home of the larger mammalia: it is not their proper _habitat_, nor are they found in it. in the amazon forest but few species exist, and these not numerous in individuals. there are no vast herds--as of buffaloes on the prairies of north america, or of antelopes in africa. the tapir alone attains to any considerable size,--exceeding that of the ass,--but its numbers are few. three or four species of small deer represent the ruminants, and the hog of the amazon is the peccary. of these there are at least three species. where the forest impinges on the mountain regions of peru, bears are found of at least two kinds, but not on the lower plains of the great "montana,"--for by this general designation is the vast expanse of the amazon country known among the peruvian people. "montes" and "montanas," literally signifying "mountains," are not so understood among spanish americans. with them the "montes" and "montanas" are tracts of forest-covered country, and that of the amazon valley is the "montana" _par excellence_. sloths of several species, and opossums of still greater variety, are found all over the montana, but both thinly distributed as regards the number of individuals. a similar remark applies to the ant-eaters or "ant-bears," of which there are four kinds,--to the armadillos, the "agoutis," and the "cavies," one of which last, the _capibara_, is the largest rodent upon earth. this, with its kindred genus, the "paca," is not so rare in individual numbers, but, on the contrary, appears in large herds upon the borders of the rivers and lagoons. a porcupine, several species of spinous rats, an otter, two or three kinds of badger-like animals (the _potto_ and _coatis_), a "honey-bear" (_galera barbara_), and a fox, or wild dog, are widely distributed throughout the montana. everywhere exists the jaguar, both the black and spotted varieties, and the puma has there his lurking-place. smaller cats, both spotted and striped, are numerous in species, and squirrels of several kinds, with bats, complete the list of the terrestrial mammalia. of all the lower animals, monkeys are the most common, for to them the montana is a congenial home. they abound not only in species, but in the number of individuals, and their ubiquitous presence contributes to enliven the woods. at least thirty different kinds of them exist in the amazon valley, from the "coatas," and other howlers as large as baboons, to the tiny little "ouistitis" and "saimiris," not bigger than squirrels or rats. while we must admit a paucity in the species of the quadrupeds of the amazon, the same remark does not apply to the birds. in the ornithological department of natural history, a fulness and richness here exist, perhaps not equalled elsewhere. the most singular and graceful forms, combined with the most brilliant plumage, are everywhere presented to the eye, in the parrots and great macaws, the toucans, trogons, and tanagers, the _shrikes_, humming-birds, and orioles; and even in the vultures and eagles: for here are found the most beautiful of predatory birds,--the king vulture and the harpy eagle. of the feathered creatures existing in the valleys of the amazon there are not less than one thousand different species, of which only one half have yet been caught or described. reptiles are equally abundant--the serpent family being represented by numerous species, from the great water boa (_anaconda_), of ten yards in length, to the tiny and beautiful but venomous _lachesis_, or coral snake, not thicker than the shank of a tobacco-pipe. the lizards range through a like gradation, beginning with the huge "jacare," or crocodile, of several species, and ending with the turquoise-blue _anolius_, not bigger than a newt. the waters too are rich in species of their peculiar inhabitants--of which the most remarkable and valuable are the _manatees_ (two or three species), the great and smaller turtles, the porpoises of various kinds, and an endless catalogue of the finny tribes that frequent the rivers of the tropics. it is mainly from this source, and not from four-footed creatures of the forest, that the human denizen of the great montana draws his supply of food,--at least that portion of it which may be termed the "meaty." were it not for the _manatee_, the great porpoise, and other large fish, he would often have to "eat his bread dry." and now it is _his_ turn to be "talked about." i need not inform you that the aborigines who inhabit the valley of the amazon, are all of the so-called _indian_ race--though there are so many, distinct tribes of them that almost every river of any considerable magnitude has a tribe of its own. in some cases a number of these tribes belong to one _nationality_; that is, several of them may be found speaking nearly the same language, though living apart from each other; and of these larger divisions or nationalities there are several occupying the different districts of the montana. the tribes even of the same nationality do not always present a uniform appearance. there are darker and fairer tribes; some in which the average standard of height is less than among europeans; and others where it equals or exceeds this. there are tribes again where both men and women are ill-shaped and ill-favoured--though these are few--and other tribes where both sexes exhibit a considerable degree of personal beauty. some tribes are even distinguished for their good looks, the men presenting models of manly form, while the women are equally attractive by the regularity of their features, and the graceful modesty of expression that adorns them. a minute detail of the many peculiarities in which the numerous tribes of the amazon differ from one another would fill a large volume; and in a sketch like the present, which is meant to include them all, it would not be possible to give such a detail. nor indeed would it serve any good purpose; for although there are many points of difference between the different tribes, yet these are generally of slight importance, and are far more than counterbalanced by the multitude of resemblances. so numerous are these last, as to create a strong _idiosyncrasy_ in the tribes of the amazon, which not only entitles them to be classed together in an ethnological point of view, but which separates them from all the other indians of america. of course, the non-possession of the horse--they do not even know the animal--at once broadly distinguishes them from the horse indians, both of the northern and southern divisions of the continent. it would be idle here to discuss the question as to whether the amazonian indians have all a common origin. it is evident they have not. we know that many of them are from peru and bogota--runaways from spanish oppression. we know that others migrated from the south-equally fugitives from the still more brutal and barbarous domination of the portuguese. and still others were true aboriginals of the soil, or if emigrants, when and whence came they? an idle question, never to be satisfactorily answered. there they now are, and _as they are_ only shall we here consider them. notwithstanding the different sources whence they sprang, we find them, as i have already said, stamped with a certain idiosyncrasy, the result, no doubt, of the like circumstances which surround them. one or two tribes alone, whose habits are somewhat "odder" than the rest, have been treated to a separate chapter; but for the others, whatever is said of one, will, with very slight alteration, stand good for the whole of the amazonian tribes. let it be understood that we are discoursing only of those known as the "indios bravos," the fierce, brave, savage, or wild indians--as you may choose to translate the phrase,--a phrase used throughout all spanish america to distinguish those tribes, or sections of tribes, who refused obedience to spanish tyranny, and who preserve to this hour their native independence and freedom. in contradistinction to the "indios bravos" are the "indios mansos," or "tame indians," who submitted tamely both to the cross and sword, and now enjoy a rude demi-semi-civilisation, under the joint protectorate of priests and soldiers. between these two kinds of american aborigines, there is as much difference as between a lord and his serf--the true savage representing the former and the demi-semi-civilised savage approximating more nearly to the latter. the meddling monk has made a complete failure of it. his ends were purely political, and the result has proved ruinous to all concerned;--instead of civilising the savage, he has positively demoralised him. it is not of his neophytes, the "indios mansos," we are now writing, but of the "infidels," who would not hearken to his voice or listen to his teachings--those who could never be brought within "sound of the bell." both "kinds" dwell within the valley of the amazon, but in different places. the "indios mansos" may be found along the banks of the main stream, from its source to its mouth--but more especially on its upper waters, where it runs through spanish (peruvian) territory. there they dwell in little villages or collections of huts, ruled by the missionary monk with iron rod, and performing for him all the offices of the menial slave. their resources are few, not even equalling those of their wild but independent brethren; and their customs and religion exhibit a ludicrous _melange_ of savagery and civilisation. farther down the river, the "indio manso" is a "tapuio," a hireling of the portuguese, or to speak more correctly, a _slave_; for the latter treats him as such, considers him as such, and though there is a law against it, often drags him from his forest-home and keeps him in life-long bondage. any human law would be a dead letter among such white-skins as are to be encountered upon the banks of the amazon. fortunately they are but few; a town or two on the lower amazon and rio negro,--some wretched villages between,--scattered _estancias_ along the banks--with here and there a paltry post of "militarios," dignified by the name of a "fort:" these alone speak the progress of the portuguese civilisation throughout a period of three centuries! from all these settlements the wild indian keeps away. he is never found near them--he is never seen by travellers, not even by the settlers. you may descend the mighty amazon from its source to its mouth, and not once set your eyes upon the true son of the forest--the "indio bravo." coming in contact only with the neophyte of the spanish missionary, and the skulking _tapuio_ of the portuguese trader, you might bring away a very erroneous impression of the character of an amazonian indian. where is he to be seen? where dwells he? what like is his home? what sort of a house does he build? his costume? his arms? his occupation? his habits? these are the questions you would put. they shall all be answered, but briefly as possible--since our limited space requires brevity. the wild indian, then, is not to be found upon the amazon itself, though there are long reaches of the river where he is free to roam--hundreds of miles without either town or _estancia_. he hunts, and occasionally fishes by the great water, but does not there make his dwelling--though in days gone by, its shores were his favourite place of residence. these were before the time when orellana floated down past the door of his "malocca"--before that dark hour when the brazilian slave-hunter found his way into the waters of the mighty _solimoes_. this last event was the cause of his disappearance. it drove him from the shores of his beloved river-sea; forced him to withdraw his dwelling from observation, and rebuild it far up, on those tributaries where he might live a more peaceful life, secure from the trafficker in human flesh. hence it is that the home of the amazonian indian is now to be sought for--not on the amazon itself, but on its tributary streams--on the "canos" and "igaripes," the canals and lagoons that, with a labyrinthine ramification, intersect the mighty forest of the montana. here dwells he, and here is he to be seen by any one bold enough to visit him in his fastness home. how is he domiciled? is there anything peculiar about the style of his house or his village? eminently peculiar; for in this respect he differs from all the other savage people of whom we have yet written, or of whom we may have occasion to write. let us proceed at once to describe his dwelling. it is not a tent, nor is it a hut, nor a cabin, nor a cottage, nor yet a cave! his dwelling can hardly be termed a house, nor his village a collection of houses-since both house and village are one and the same, and both are so peculiar, that we have no name for such a structure in civilised lands, unless we should call it a "barrack." but even this appellation would give but an erroneous idea of the amazonian dwelling; and therefore we shall use that by which it is known in the "lingoa geral," and call it a _malocca_. by such name is his house (or village rather) known among the _tapuios_ and traders of the amazon. since it is both house and village at the same time, it must needs be a large structure; and so is it, large enough to contain the whole tribe--or at least the section of it that has chosen one particular spot for their residence. it is the property of the whole community, built by the labour of all, and used as their common dwelling--though each family has its own section specially set apart for itself. it will thus be seen that the amazonian savage is, to some extent, a disciple of the socialist school. i have not space to enter into a minute account of the architecture of the _malocca_. suffice it to say, that it is an immense temple-like building, raised upon timber uprights, so smooth and straight as to resemble columns. the beams and rafters are also straight and smooth, and are held in their places by "sipos" (tough creeping plants), which are whipped around the joints with a neatness and compactness equal to that used in the rigging of a ship. the roof is a thatch of palm-leaves, laid on with great regularity, and brought very low down at the eaves, so as to give to the whole structure the appearance of a gigantic beehive. the walls are built of split palms or bamboos, placed so closely together as to be impervious to either bullet or arrows. the plan is a parallelogram, with a semicircle at one end; and the building is large enough to accommodate the whole community, often numbering more than a hundred individuals. on grand festive occasions several neighbouring communities can find room enough in it--even for dancing--and three or four hundred individuals not unfrequently assemble under the roof of a single _malocca_. inside the arrangements are curious. there is a wide hall or avenue in the middle--that extends from end to end throughout the whole length of the parallelogram--and on both sides of the hall is a row of partitions, separated from each other by split palms or canes, closely placed. each of these sections is the abode of a family, and the place of deposit for the hammocks, clay pots, calabash-cups, dishes, baskets, weapons, and ornaments, which are the private property of each. the hall is used for the larger cooking utensils--such as the great clay ovens and pans for baking the cassava, and boiling the _caxire_ or _chicha_. this is also a neutral ground, where the children play, and where the dancing is done on the occasion of grand "balls" and other ceremonial festivals. the common doorway is in the gable end, and is six feet wide by ten in height. it remains open during the day, but is closed at night by a mat of palm fibre suspended from the top. there is another and smaller doorway at the semicircular end; but this is for the private use of the chief, who appropriates the whole section of the semicircle to himself and his family. of course the above is only the general outline of a _malocca_. a more particular description would not answer for that of all the tribes of the amazon. among different communities, and in different parts of the montana, the _malocca_ varies in size, shape, and the materials of which it is built; and there are some tribes who live in separate huts. these exceptions, however, are few, and as a general thing, that above described is the style of habitation throughout the whole montana, from the confines of peru to the shores of the atlantic. north and south we encounter this singular house-village, from the headwaters of the rio negro to the highlands of brazil. most of the amazonian tribes follow agriculture, and understood the art of tillage before the coming of the spaniards. they practise it, however, to a very limited extent. they cultivate a little manioc, and know how to manufacture it into _farinha_ or _cassava_ bread. they plant the _musaceae_ and yam, and understand the distillation of various drinks, both from the plantain and several kinds of palms. they can make pottery from clay,--shaping it into various forms, neither rude nor inelegant,--and from the trees and parasitical twiners that surround their dwellings, they manufacture an endless variety of neat implements and utensils. their canoes are hollow trunks of trees sufficiently well-shaped, and admirably adapted to their mode of travelling--which is almost exclusively by water, by the numerous _canos_ and _igaripes_, which are the roads and paths of their country--often as narrow and intricate as paths by land. the indians of the tropic forest dress in the very lightest costume. of course each tribe has its own fashion; but a mere belt of cotton cloth, or the inner bark of a tree, passed round the waist and between the limbs, is all the covering they care for. it is the _guayuco_. some wear a skirt of tree bark, and, on grand occasions, feather tunics are seen, and also plume head-dresses, made of the brilliant wing and tail feathers of parrots and macaws. circlets of these also adorn the arms and limbs. all the tribes paint, using the _anotto, caruto_, and several other dyes which they obtain from various kinds of trees, elsewhere more particularly described. there are one or two tribes who _tattoo_ their skins; but this strange practice is far less common among the american indians than with the natives of the pacific isles. in the manufacture of their various household utensils and implements, as well as their weapons for war and the chase, many tribes of amazonian indians display an ingenuity that would do credit to the most accomplished artisans. the hammocks made by them have been admired everywhere; and it is from the valley of the amazon that most of these are obtained, so much prized in the cities of spanish and portuguese america. they are the special manufacture of the women, the men only employing their mechanical skill on their weapons: the hammock, "rede," or "maqueira," is manufactured out of strings obtained from the young leaves of several species of palms. the _astrocaryum_, or "tucum" palm furnishes this cordage, but a still better quality is obtained from the "miriti" (_mauritia flexuosa_). the unopened leaf, which forms a thick-pointed column growing up out of the crown of the tree, is cut off at the base, and this being pulled apart, is shaken dexterously until the tender leaflets fall out. these being stripped of their outer covering, leave behind a thin tissue of a pale-yellowish colour, which is the fibre for making the cordage. after being tied in bundles this fibre is left awhile to dry, and is then twisted by being rolled between the hand and the hip or thigh. the women perform this process with great dexterity. taking two strands of fibre between the forefinger and thumb of the left hand, they lay them separated a little along the thigh; a roll downward gives them a twist, and then being adroitly brought together, a roll upwards completes the making of the cord. fifty fathoms in a day is considered a good day's spinning. the cords are afterwards dyed of various colours, to render them more ornamental when woven into the maqueira. the making of this is a simple process. two horizontal rods are placed at about seven feet apart, over which the cord is passed some fifty or sixty times, thus forming the "woof." the warp is then worked in by knotting the cross strings at equal distances apart, until there are enough. two strong cords are then inserted where the rods pass through, and these being firmly looped, so as to draw all the parallel strings together, the rod is pulled out, and the hammock is ready to be used. of course, with very fine "redes," and those intended to be disposed of to the traders, much pains are taken in the selection of the materials, the dyeing the cord, and the weaving it into the hammock. sometimes very expensive articles are made ornamented with the brilliant feathers of birds cunningly woven among the meshes and along the borders. besides making the hammock, which is the universal couch of the amazonian indian, the women also manufacture a variety of beautiful baskets. many species of palms and _calamus_ supply them with materials for this purpose, one of the best being the "iu" palm (_astrocaryum acaule_). they also make many implements and utensils, some for cultivating the plantains, melons, and _manioc root_, and others for manufacturing the last-named vegetable into their favourite "farinha" (_cassava_). the indians understood how to separate the poisonous juice of this valuable root from its wholesome farina before the arrival of white men among them; and the process by which they accomplish this purpose has remained without change up to the present hour, in fact, it is almost the same as that practised by the spaniards and portuguese, who simply adopted the indian method. the work is performed by the women, and thus: the roots are brought home from the manioc "patch" in baskets, and then washed and peeled. the peeling is usually performed by the teeth; after that the roots are grated, the grater being a large wooden slab about three feet long, a foot wide, a little hollowed out, and the hollow part covered all over with sharp pieces of quartz set in regular diamond-shaped patterns. sometime a cheaper grater is obtained by using the aerial root of the pashiuba palm (_iriartea exhorhiza_), which, being thickly covered over with hard spinous protuberances, serves admirably for the purpose. the grated pulp is next placed to dry upon a sieve, made of the rind of a water-plant, and is afterwards put into a long elastic cylinder-shaped basket or net, of the bark of the "jacitara" palm (_desmoncus macroacanthus_). this is the _tipiti_; and at its lower end there is a strong loop, through which a stout pole is passed; while the _tipiti_ itself, when filled with pulp, is hung up to the branch of a tree, or to a firm peg in the wall. one end of the pole is then rested against some projecting point, that serves as a fulcrum, while the indian woman, having seated herself upon the other end, with her infant in her arms, or perhaps some work in her hands, acts as the lever power. her weight draws the sides of the _tipiti_ together, until it assumes the form of an inverted cone; and thus the juice is gradually pressed out of the pulp, and drops into a vessel placed underneath to receive it. the mother must be careful that the little imp does not escape from under her eye, and perchance quench its thirst out of the vessel below. if such an accident were to take place, in a very few minutes she would have to grieve for a lost child; since the sap of the manioc root, the variety most cultivated by the indians, is a deadly poison. this is the "yucca amarga," or bitter manioc; the "yucca dulce," or sweet kind, being quite innoxious, even if eaten in its raw state. the remainder of the process consists in placing the grated pulp--now sufficiently dry--on a large pan or oven, and submitting it to the action of the fire. it is then thought sufficiently good for indian use; but much of it is afterwards prepared for commerce, under different names, and sold as _semonilla_ (erroneously called _semolina_), sago, and even as arrowroot. at the bottom of that, poisonous tub, a sediment has all the while been forming. that is the _starch_ of the manioc root--the _tapioca_ of commerce: of course that is not thrown away. the men of the tropic forest spend their lives in doing very little. they are idle and not much disposed to work--only when war or the chase calls them forth do they throw aside for awhile their indolent habit, and exhibit a little activity. they hunt with the bow and arrow, and fish with a harpoon spear, nets, and sometimes by poisoning water with the juice of a vine called barbasco. the "peixe boy," "vaca marina," or "manatee,"--all three names being synonymes--is one of the chief animals of their pursuit. all the waters of the amazon valley abound with manatees, probably of several species, and these large creatures are captured by the harpoon, just as seals or walrus are taken. porpoises also frequent the south-american rivers; and large fresh-water fish of numerous species. the game hunted by the amazonian indians can scarcely be termed noble. we have seen that the large _mammalia_ are few, and thinly distributed in the tropical forest. with the exception of the jaguar and peccary, the chase is limited to small quadrupeds--as the capibara, the paca, agouti--to many kinds of monkeys, and an immense variety of birds. the monkey is the most common game, and is not only eaten by all the amazonian indians, but by most of them considered as the choicest of food. in procuring their game the hunters sometimes use the common bow and arrow, but most of the tribes are in possession of a weapon which they prefer to all others for this particular purpose. it is an implement of death so original in its character and so singular in its construction as to deserve a special and minute description. the weapon i allude to is the "blow-gun," called "pucuna" by the indians themselves, "gravitana" by the spaniards, and "cerbatana" by the portuguese of brazil. when the amazonian indian wishes to manufacture for himself a _pucuna_ he goes out into the forest and searches for two tall, straight stems of the "pashiuba miri" palm (_iriartea setigera_). these he requires of such thickness that one can be contained within the other. having found what he wants, he cuts both down and carries them home to his molocca. neither of them is of such dimensions as to render this either impossible or difficult. he now takes a long slender rod--already prepared for the purpose--and with this pushes out the pith from both stems, just as boys do when preparing their pop-guns from the stems of the elder-tree. the rod thus used is obtained from another species of _iriartea_ palm, of which the wood is very hard and tough. a little tuft of fern-root, fixed upon the end of the rod, is then drawn backward and forward through the tubes, until both are cleared of any pith which may have adhered to the interior; and both are polished by this process to the smoothness of ivory. the palm of smaller diameter, being scraped to a proper size, is now inserted into the tube of the larger, the object being to correct any crookedness in either, should there be such; and if this does not succeed, both are whipped to some straight beam or post, and thus left till they become straight. one end of the bore, from the nature of the tree, is always smaller than the other; and to this end is fitted a mouthpiece of two peccary tusks to concentrate the breath of the hunter when blowing into the tube. the other end is the muzzle; and near this, on the top, a sight is placed, usually a tooth of the "paca" or some other rodent animal. this sight is glued on with a gum which another tropic tree furnishes. over the outside, when desirous of giving the weapon an ornamental finish, the maker winds spirally a shining creeper, and then the _pucuna_ is ready for action. sometimes only a single shank of palm is used, and instead of the pith being pushed out, the stem is split into two equal parts throughout its whole extent. the heart substance being then removed, the two pieces are brought together, like the two divisions of a cedarwood pencil, and tightly bound with a sipo. the _pucuna_ is usually about an inch and a half in diameter at the thickest end, and the bore about equal to that of a pistol of ordinary calibre. in length, however, the weapon varies from eight to twelve feet. this singular instrument is designed, not for propelling a bullet, but an arrow; but as this arrow differs altogether from the common kind it also needs to be described. the blow-gun arrow is about fifteen or eighteen inches long, and is made of a piece of split bamboo; but when the "patawa" palm can be found, this tree furnishes a still better material, in the long spines that grow out from the sheathing bases of its leaves. these are 18 inches in length, of a black colour, flattish though perfectly straight. being cut to the proper length--which most of them are without cutting--they are whittled at one end to a sharp point. this point is dipped about three inches deep in the celebrated "curare" poison; and just where the poison mark terminates, a notch is made, so that the head will be easily broken off when the arrow is in the wound. near the other end a little soft down of silky cotton (the floss of the _bombax ceiba_) is twisted around into a smooth mass of the shape of a spinning-top, with its larger end towards the nearer extremity of the arrow. the cotton is held in its place by being lightly whipped on by the delicate thread or fibre of a _bromelia_, and the mass is just big enough to fill the tube by gently pressing it inward. the arrow thus made is inserted, and whenever the game is within reach the indian places his mouth to the lower end or mouthpiece, and with a strong "puff," which practice enables him to give, he sends the little messenger upon its deadly errand. he can hit with unerring aim at the distance of forty or fifty paces; but he prefers to shoot in a direction nearly vertical, as in that way he can take the surest aim. as his common game--birds and monkeys--are usually perched upon the higher branches of tall trees, their situation just suits him. of course it is not the mere wound of the arrow that kills these creatures, but the poison, which in two or three minutes after they have been hit, will bring either bird or monkey to the ground. when the latter is struck he would be certain to draw out the arrow; but the notch, already mentioned, provides against this, as the slightest wrench serves to break off the envenomed head. these arrows are dangerous things,--even for the manufacturer of them to play with: they are therefore carried in a quiver, and with great care,--the quiver consisting either of a bamboo joint or a neat wicker case. the weapons of war used by the forest tribes are the common bow and arrows, also tipped with _curare_, and the "macana," or war-club, a species peculiar to south america, made out of the hard heavy wood of the _pissaba_ palm. only one or two tribes use the spear; and both the "bolas" and lazo are quite unknown, as such weapons would not be available among the trees of the forest. these are the proper arms of the horse indian, the dweller on the open plains; but without them, for all war purposes, the forest tribes have weapons enough, and, unfortunately, make a too frequent use of them. chapter three. the water-dwellers of maracaibo. the andes mountains, rising in the extreme southern point of south america, not only extend throughout the whole length of that continent, but continue on through central america and mexico, under the name of "cordilleras de sierra madre;" and still farther north to the shores of the arctic sea, under the very inappropriate appellation of the "rocky mountains." you must not suppose that these stupendous mountains form one continuous elevation. at many places they furcate into various branches, throwing off spurs, and sometime parallel "sierras," between which lie wide "valles," or level plains of great extent. it is upon these high plateaux--many of them elevated 7,000 feet above the sea-that the greater part of the spanish-american population dwells; and on them too are found most of the large cities of spanish south america and mexico. these parallel chains meet at different points, forming what the peruvians term "nodas" (knots); and, after continuing for a distance in one great cordillera, again bifurcate. one of the most remarkable of these bifurcations of the andes occurs about latitude 2 degrees north. there the gigantic sierra separates into two great branches, forming a shape like the letter y, the left limb being that which is usually regarded as the main continuation of these mountains through the isthmus of panama, while the right forms the eastern boundary of the great valley of the magdalena river; and then, trending in an eastwardly direction along the whole northern coast of south america to the extreme point of the promontory of paria. each of these limbs again forks into several branches or spurs,--the whole system forming a figure that may be said to bear some resemblance to a genealogical tree containing the pedigree of four or five generations. it is only with one of the bifurcations of the right or eastern sierra that this sketch has to do. on reaching the latitude of 7 degrees north, this chain separates itself into two wings, which, after diverging widely to the east and west, sweep round again towards each other, as if desirous to be once more united. the western wing advances boldly to this reunion; but the eastern, after vacillating for a time, as if uncertain what course to take, turns its back abruptly on its old comrade, and trends off in a due east direction, till it sinks into insignificance upon the promontory of paria. the whole mass of the sierra, however, has not been of one mind; for, at the time of its indecision, a large spur detaches itself from the main body, and sweeps round, as if to carry out the union with the left wing advancing from the west. although they get within sight of each other, they are not permitted to meet,--both ending abruptly before the circle is completed, and forming a figure bearing a very exact resemblance to the shoe of a racehorse. within this curving boundary is enclosed a vast valley,--as large as the whole of ireland,--the central portion of which, and occupying about one third of its whole extent, is a sheet of water, known from the days of the discovery of america, as the _lake of maracaibo_. it obtained this appellation from the name of an indian cazique, who was met upon its shores by the first discoverers; but although this lake was known to the earliest explorers of the new world,--although it lies contiguous to many colonial settlements both on the mainland and the islands of the caribbean sea,--the lake itself and the vast territory that surrounds it, remain almost as unknown and obscure as if they were situated among the central deserts of africa. and yet the valley of maracaibo is one of the most interesting portions of the globe,--interesting not only as a _terra incognita_, but on account of the diversified nature of its scenery and productions. it possesses a _fauna_ of a peculiar kind, and its _flora_ is one of the richest in the world, not surpassed,--perhaps not equalled,--by that of any other portion of the torrid zone. to give a list of its vegetable productions would be to enumerate almost every species belonging to tropical america. here are found the well-known medicinal plants,--the sassafras and sarsaparilla, guaiacum, copaiva, cinchona, and cuspa, or _cortex angosturae_; here are the deadly poisons of _barbasco_ and _mavacure_, and alongside them the remedies of the "palo sano," and _mikania guaco_. here likewise grow plants and trees producing those well-known dyes of commerce, the blue indigo, the red arnotto, the lake-coloured chica, the brazilletto, and dragon's-blood; and above all, those woods of red, gold, and ebon tints, so precious in the eyes of the cabinet and musical-instrument makers of europe. yet, strange to say, these rich resources lie, like treasures buried in the bowels of the earth, or gems at the bottom of the sea, still undeveloped. a few small lumbering establishments near the entrance of the lake,--here and there a miserable village, supported by a little coast commerce in dyewoods, or cuttings of ebony,--now and then a hamlet of fishermen,--a "hato" of goats and sheep; and at wider intervals, a "ganaderia" of cattle, or a plantation of cocoa-trees (_cocale_), furnish the only evidence that man has asserted his dominion over this interesting region. these settlements, however, are sparsely distributed, and widely distant from one another. between them stretch broad savannas and forests,--vast tracts, untitled and even unexplored,--a very wilderness, but a wilderness rich in natural resources. the lake of maracaibo is often, though erroneously, described as an arm of the sea. this description only applies to the _gulf of maracaibo_, which is in reality a portion of the caribbean sea. the lake itself is altogether different, and is a true fresh-water lake, separated from the gulf by a narrow neck or strait. within this strait--called "boca," or mouth--the salt water does not extend, except during very high tides or after long-continued _nortes_ (north winds), which have the effect of driving the sea-water up into the lake, and imparting to some portions of it a saline or brackish taste. this, however, is only occasional and of temporary continuance; and the waters of the lake, supplied by a hundred streams from the horseshoe sierra that surrounds it, soon return to their normal character of freshness. the shape of lake maracaibo is worthy of remark. the main body of its surface is of oval outline,--the longer diameter running north and south,--but taken in connection with the straits which communicate with the outer gulf, it assumes a shape somewhat like that of a jew's-harp, or rather of a kind of guitar, most in use among spanish americans, and known under the name of "mandolin" (or "bandolon"). to this instrument do the natives sometimes compare it. another peculiarity of lake maracaibo, is the extreme shallowness of the water along its shores. it is deep enough towards the middle part; but at many points around the shore, a man may wade for miles into the water, without getting beyond his depth. this peculiarity arises from the formation of the valley in which it is situated. only a few spurs of the sierras that surround it approach near the edge of the lake. generally from the bases of the mountains, the land slopes with a very gentle declination,--so slight as to have the appearance of a perfectly horizontal plain,--and this is continued for a great way under the surface of the water. strange enough, however, after getting to a certain distance from the shore, the shoal water ends as abruptly as the escarpment of a cliff, and a depth almost unfathomable succeeds,--as if the central part of the lake was a vast subaqueous ravine, bounded on both sides by precipitous cliffs. such, in reality, is it believed to be. a singular phenomenon is observed in the lake maracaibo, which, since the days of columbus, has not only puzzled the curious, but also the learned and scientific, who have unsuccessfully attempted to explain it. this phenomenon consists in the appearance of a remarkable light, which shows itself in the middle of the night, and at a particular part of the lake, near its southern extremity. this light bears some resemblance to the _ignis fatuus_ of our own marshes; and most probably is a phosphorescence of a similar nature, though on a much grander scale,-since it is visible at a vast distance across the open water. as it is seen universally in the same direction, and appears fixed in one place, it serves as a beacon for the fishermen and dye-wood traders who navigate the waters of the lake,--its longitude being precisely that of the straits leading outward to the gulf. vessels that have strayed from their course, often regulate their reckoning by the mysterious "farol de maracaibo" (lantern of maracaibo),--for by this name is the natural beacon known to the mariners of the lake. various explanations have been offered to account for this singular phenomenon, but none seem to explain it in a satisfactory manner. it appears to be produced by the exhalations that arise from an extensive marshy tract lying around the mouth of the river zulia, and above which it universally shows itself. the atmosphere in this quarter is usually hotter than elsewhere, and supposed to be highly charged with electricity; but whatever may be the chemical process which produces the illumination, it acts in a perfectly silent manner. no one has ever observed any explosion to proceed from it, or the slightest sound connected with its occurrence. of all the ideas suggested by the mention of lake maracaibo, perhaps none are so interesting as those that relate to its native inhabitants, whose peculiar habits and modes of life not only astonished the early navigators, but eventually gave its name to the lake itself and to the extensive province in which it is situated. when the spanish discoverers, sailing around the shores of the gulf, arrived near the entrance of lake maracaibo, they saw, to their amazement, not only single houses, but whole villages, apparently floating upon the water! on approaching nearer, they perceived that these houses were raised some feet above the surface, and supported by posts or piles driven into the mud at the bottom. the idea of venice--that city built upon the sea, to which they had been long accustomed--was suggested by these _superaqueous_ habitations; and the name of _venezuela_ (little venice) was at once bestowed upon the coast, and afterwards applied to the whole province now known as the republic of venezuela. though the "water villages" then observed have long since disappeared, many others of a similar kind were afterwards discovered in lake maracaibo itself, some of which are in existence to the present day. besides here and there an isolated habitation, situated in some bay or "laguna," there are four principal villages upon this plan still in existence, each containing from fifty to a hundred habitations. the inhabitants of some of these villages have been "christianised," that is, have submitted to the teaching of the spanish missionaries; and one in particular is distinguished by having its little church--a regular _water_ church--in the centre, built upon piles, just as the rest of the houses are, and only differing from the common dwellings in being larger and of a somewhat more pretentious style. from the belfry of this curious ecclesiastical edifice a brazen bell may be heard at morn and eve tolling the "oracion" and "vespers," and declaring over the wide waters of the lake that the authority of the spanish monk has replaced the power of the cazique among the indians of the lake maracaibo. not to all sides of the lake, however, has the cross extended its conquest. along its western shore roams the fierce unconquered goajiro, who, a true warrior, still maintains his independence; and even encroaches upon the usurped possessions both of monk and "militario." the _water-dweller_, however, although of kindred race with the goajiro, is very different, both in his disposition and habits of life. he is altogether a man of peace, and might almost be termed a civilised being,--that is, he follows a regular industrial calling, by which he subsists. this is the calling of a fisherman, and in no part of the world could he follow it with more certainty of success, since the waters which surround his dwelling literally swarm with fish. lake maracaibo has been long noted as the resort of numerous and valuable species of the finny tribe, in the capture of which the indian fisherman finds ample occupation. he is betimes a fowler,--as we shall presently see,--and he also sometimes indulges, though more rarely, in the chase, finding game in the thick forests or on the green savannas that surround the lake, or border the banks of the numerous "riachos" (streams) running into it. on the savanna roams the graceful roebuck and the "venado," or south-american deer, while along the river banks stray the capibara and the stout tapir, undisturbed save by their fierce feline enemies, the puma and spotted jaguar. but hunting excursions are not a habit of the water indian, whose calling, as already observed, is essentially that of a fisherman and "fowler," and whose subsistence is mainly derived from two kinds of _water-dwellers_, like himself--one with fins, living below the surface, and denominated _fish_; another with wings, usually resting _on_ the surface, and known as _fowl_. these two creatures, of very different kinds and of many different species, form the staple and daily food of the indian of maracaibo. in an account of his habits we stall begin by giving a description of the mode in which he constructs his singular dwelling. like other builders he begins by selecting the site. this must be a place where the water is of no great depth; and the farther from the shore he can find a shallow spot the better for his purpose, for he has a good reason for desiring to get to a distance from the shore, as we shall presently see. sometimes a sort of subaqueous island, or elevated sandbank, is found, which gives him the very site he is in search of. having pitched upon the spot, his next care is to procure a certain number of tree-trunks of the proper length and thickness to make "piles." not every kind of timber will serve for this purpose, for there are not many sorts that would long resist decay and the wear and tear of the water insects, with which the lake abounds. moreover, the building of one of these aquatic houses, although it be only a rude hut, is a work of time and labour, and it is desirable therefore to make it as permanent as possible. for this reason great care is taken in the selection of the timber for the "piles." but it so chances that the forests around the lake furnish the very thing itself, in the wood of a tree known to the _spanish inhabitants_ as the "vera," of "palo sano," and to the natives as "guaiac." it is one of the zygophyls of the genus _guaiacum_, of which there are many species, called by the names of "iron-wood" or "lignum-vitae;" but the species in question is the _tree_ lignum-vitae (_guaiacum arboreum_), which attains to a height of 100 feet, with a fine umbrella-shaped head, and bright orange flowers. its wood is so hard, that it will turn the edge of an axe, and the natives believe that if it be buried for a sufficient length of time under the earth it will turn to iron! though this belief is not literally true, as regards the _iron_, it is not so much of an exaggeration as might be supposed. the "palo de fierro," when buried in the soil of maracaibo or immersed in the waters of the lake, in reality does undergo a somewhat similar metamorphose; in other words, it turns into stone; and the petrified trunks of this wood are frequently met with along the shores of the lake. what is still more singular--the piles of the water-houses often become petrified, so that the dwelling no longer rests upon wooden posts, but upon real columns of stone! knowing all this by experience, the indian selects the guaiac for his uprights, cuts them of the proper length; and then, launching them in the water, transports them to the site of his dwelling, and fixes them in their places. upon this a platform is erected, out of split boards of some less ponderous timber, usually the "ceiba," or "silk-cotton tree" (_bombax ceiba_), or the "cedro negro" (_cedrela odorata_) of the order _meliaceae_. both kinds grow in abundance upon the shores of the lake,--and the huge trunks of the former are also used by the water indian for the constructing of his canoe. the platform, or floor, being thus established, about two or three feet above the surface of the water, it then only remains to erect, the walls and cover them over with a roof. the former are made of the slightest materials,--light saplings or bamboo poles,--usually left open at the interstices. there is no winter or cold weather here,--why should the walls be thick? there are heavy rains, however, at certain seasons of the year, and these require to be guarded against; but this is not a difficult matter, since the broad leaves of the "enea" and "vihai" (a species of _heliconia_) serve the purpose of a roof just as well as tiles, slates, or shingles. nature in these parts is bountiful, and provides her human creatures with a spontaneous supply of every want. even ropes and cords she furnishes, for binding the beams, joists, and rafters together, and holding on the thatch against the most furious assaults of the wind. the numerous species of creeping and twining plants ("llianas" or "sipos") serve admirably for this purpose. they are applied in their green state, and when contracted by exsiccation draw the timbers as closely together as if held by spikes of iron. in this manner and of such materials does the water indian build his house. why he inhabits such a singular dwelling is a question that requires to be answered. with the _terra firma_ close at hand, and equally convenient for all purposes of his calling, why does he not build his hut there? so much easier too of access would it be, for he could then approach it either by land or by water; whereas, in its present situation, he can neither go away from his house or get back to it without the aid of his "periagua" (canoe). moreover, by building on the beach, or by the edge of the woods, he would spare himself the labour of transporting those heavy piles and setting them in their places,--a work, as already stated, of no ordinary magnitude. is it for personal security against human enemies,--for this sometimes drives a people to seek singular situations for their homes? no; the indian of maracaibo has his human foes, like all other people; but it is none of these that have forced him to adopt this strange custom. other enemies? wild beasts? the dreaded jaguar, perhaps? no, nothing of this kind. and yet it is in reality a living creature that drives him to this resource,-that has forced him to flee from the mainland and take to the water for security against its attack,--a creature of such small dimensions, and apparently so contemptible in its strength, that you will no doubt smile at the idea of its putting a strong man to flight,--a little insect exactly the size of an english gnat, and no bigger, but so formidable by means of its poisonous bite, and its myriads of numbers, as to render many parts of the shores of lake maracaibo quite uninhabitable. you guess, no doubt, the insect to which i allude? you cannot fail to recognise it as the _mosquito_? just so; it is the mosquito i mean, and in no part of south america do these insects abound in greater numbers, and nowhere are they more bloodthirsty than upon the borders of this great fresh-water sea. not only one species of mosquito, but all the varieties known as "jejens," "zancudos," and "tempraneros," here abound in countless multitudes,--each kind making its appearance at a particular hour of the day or night,--"mounting guard" (as the persecuted natives say of them) in turn, and allowing only short intervals of respite from their bitter attacks. now, it so happens, that although the various kinds of mosquitoes are peculiarly the productions of a marshy or watery region,--and rarely found where the soil is high and dry,--yet as rarely do they extend their excursions to a distance from the land. they delight to dwell under the shadow of leaves, or near the herbage of grass, plants, or trees, among which they were hatched. they do not stray far from the shore, and only when the breeze carries them do they fly out over the open water. need i say more? you have now the explanation why the indians of maracaibo build their dwellings upon the water. it is simply to escape from the "plaga de moscas" (the pest of the flies). like most other indians of tropical america, and some even of colder latitudes, those of maracaibo go naked, wearing only the _guayueo_, or "waist-belt." those of them, however, who have submitted to the authority of the monks, have adopted a somewhat more modest garb,-consisting of a small apron of cotton or palm fibre, suspended from the waist, and reaching down to their knees. we have already stated, that the water-dwelling indian is a fisherman, and that the waters of the lake supply him with numerous kinds of fish of excellent quality. an account of these, with the method employed in capturing them, may not prove uninteresting. first, there is the fish known as "liza," a species of skate. it is of a brilliant silvery hue, with bluish corruscations. it is a small fish, being only about a foot in length, but is excellent to eat, and when preserved by drying, forms an article of commerce with the west-indian islands. along the coasts of cumana and magarita, there are many people employed in the _pesca de liza_ (skate-fishery); but although the liza is in reality a sea fish, it abounds in the fresh waters of maracaibo, and is there also an object of industrial pursuit. it is usually captured by seines, made out of the fibres of the _cocui aloe_ (_agave cocuiza_), or of cords obtained from the unexpanded leaflets of the moriche palm (_mauritia flexuosa_), both of which useful vegetable products are indigenous to this region. the roe of the liza, when dried in the sun, is an article in high estimation, and finds its way into the channels of commerce. a still more delicate fish is the "pargo." it is of a white colour tinged with rose; and of these great numbers are also captured. so, too, with the "doncella," one of the most beautiful species, as its pretty name of "doncella" (young maiden) would indicate. these last are so abundant in some parts of the lake, that one of its bays is distinguished by the name of _laguna de doncella_. a large, ugly fish, called the "vagre," with an enormous head and wide mouth, from each side of which stretches a beard-like appendage, is also an object of the indian's pursuit. it is usually struck with a spear, or killed by arrows, when it shows itself near the surface of the water. another monstrous creature, of nearly circular shape, and full three feet in diameter, is the "carite," which is harpooned in a similar fashion. besides these there is the "viegita," or "old-woman fish," which itself feeds upon lesser creatures of the finny tribe, and especially upon the smaller species of shell-fish. it has obtained its odd appellation from a singular noise which it gives forth, and which resembles the voice of an old woman debilitated with extreme age. the "dorado," or gilded fish--so called on account of its beautiful colour--is taken by a hook, with no other bait attached than a piece of white rag. this, however, must be kept constantly in motion, and the bait is played by simply paddling the canoe over the surface of the lake, until the dorado, attracted by the white meteor, follows in its track, and eventually hooks itself. many other species of fish are taken by the water-indians, as the "lebranche" which goes in large "schools," and makes its breeding-place in the lagunas and up the rivers, and the "guabina," with several kinds of sardines that find their way into the tin boxes of europe; for the maracaibo fisherman is not contented with an exclusive fish diet. he likes a little "casava," or maize-bread, along with it; besides, he has a few other wants to satisfy, and the means he readily obtains in exchange for the surplus produce of his nets, harpoons, and arrows. we have already stated that he is a fowler. at certain seasons of the year this is essentially his occupation. the fowling season with him is the period of northern winter, when the migratory aquatic birds come down from the boreal regions of prince rupert's land to disport their bodies in the more agreeable waters of lake maracaibo. there they assemble in large flocks, darkening the air with their myriads of numbers, now fluttering over the lake, or, at other times, seated on its surface silent and motionless. notwithstanding their great numbers, however, they are too shy to be approached near enough for the "carry" of an indian arrow, or a gun either; and were it not for a very cunning stratagem which the indian has adopted for their capture, they might return again to their northern haunts without being minus an individual of their "count." but they are not permitted to depart thus unscathed. during their sojourn within the limits of lake maracaibo their legions get considerably thinned, and thousands of them that settle down upon its inviting waters are destined never more to take wing. to effect their capture, the indian fowler, as already stated, makes use of a very ingenious stratagem. something similar is described as being practised in other parts of the world; but in no place is it carried to such perfection as upon the lake maracaibo. the fowler first provides himself with a number of large gourd-shells of roundish form, and each of them at least as big as his own skull. these he can easily obtain, either from the herbaceous squash (_cucurbita lagenaris_) or from the calabash tree (_crescentia cujete_), both of which grow luxuriantly on the shores of the lake. filling his periagua with these, he proceeds out into the open water to a certain distance from the land, or from his own dwelling. the distance is regulated by several considerations. he must reach a place which, at all hours of the day, the ducks and other waterfowl are not afraid to frequent; and, on the other hand, he must not go beyond such a depth as will bring the water higher than his own chin when wading through it. this last consideration is not of so much importance, for the water indian can swim almost as well as a duck, and dive like one, if need be; but it is connected with another matter of greater importance--the convenience of having the birds as near as possible, to save him a too long and wearisome "wade." it is necessary to have them so near, that at all hours they may be under his eye. having found the proper situation, which the vast extent of shoal water (already mentioned) enables him to do, he proceeds to carry out his design by dropping a gourd here and another there, until a large space of surface is covered by these floating shells. each gourd has a stone attached to it by means of a string, which, resting upon the bottom, brings the buoy to an anchor, and prevents it from being drifted into the deeper water or carried entirely away. when his decoys are all placed, the indian paddles back to his platform dwelling, and there, with watchful eye, awaits the issue. the birds are at first shy of these round yellow objects intruded upon their domain; but, as the hours pass, and they perceive no harm in them, they at length take courage and venture to approach. urged by that curiosity which is instinctive in every creature, they gradually draw nigher and nigher, until at length they boldly venture into the midst of the odd objects and examine them minutely. though puzzled to make out what it is all meant for, they can perceive no harm in the yellow globe-shaped things that only bob about, but make no attempt to do them any injury. thus satisfied, their curiosity soon wears off, and the birds no longer regarding the floating shells as objects of suspicion, swim freely about through their midst, or sit quietly on the water side by side with them. but the crisis has now arrived when it is necessary the indian should act, and for this he speedily equips himself. he first ties a stout rope around his waist, to which are attached many short strings or cords. he then draws over his head a large gourd-shell, which, fitting pretty tightly, covers his whole skull, reaching down to his neck. this shell is exactly similar to the others already floating on the water, with the exception of having three holes on one side of it, two on the same level with the indian's eyes, and the third opposite his mouth, intended to serve him for a breathing-hole. he is now ready for work; and, thus oddly accoutred, he slips quietly down from his platform, and laying himself along the water, swims gently in the direction of the ducks. he swims only where the water is too shallow to prevent him from crouching below the surface; for were he to stand upright, and wade,-even though he were still distant from them,--the shy birds might have suspicions about his after-approaches. when he reaches a point where the lake is sufficiently deep, he gets upon his feet and wades, still keeping his shoulders below the surface. he makes his advance very slowly and warily, scarce raising a ripple on the surface of the placid lake, and the nearer he gets to his intended victims he proceeds with the greater caution. the unsuspecting birds see the destroyer approach without having the slightest misgiving of danger. they fancy that the new comer is only another of those inanimate objects by their side--another gourd-shell drifting out upon the water to join its companions. they have no suspicion that this wooden counterfeit--like the horse of troy--is inhabited by a terrible enemy. poor things! how could they? a stratagem so well contrived would deceive more rational intellects than theirs; and, in fact, having no idea of danger, they perhaps do not trouble themselves even to notice the new arrival. meanwhile the gourd has drifted silently into their midst, and is seen approaching the odd individuals, first one and afterwards another, as if it had some special business with each. this business appears to be of a very mysterious character; and in each case is abruptly brought to a conclusion, by the duck making a sudden dive under the water,--not head foremost, according to its usual practice, but in the reverse way, as if jerked down by the feet, and so rapidly that the creature has not time to utter a single "quack." after quite a number of individuals have disappeared in this mysterious manner, the others sometimes grow suspicious of the moving calabash, and either take to wing, or swim off to a less dangerous neighbourhood; but if the gourd performs its office in a skilful manner, it will be seen passing several times to and fro between the birds and the water village before this event takes place. on each return trip, when far from the flock, and near the habitations, it will be seen to rise high above the surface of the water. it will then be perceived that it covers the skull of a copper-coloured savage, around whose hips may be observed a double tier of dead ducks dangling by their necks from the rope upon his waist, and forming a sort of plumed skirt, the weight of which almost drags its wearer back into the water. of course a capture is followed by a feast; and during the fowling season of the year the maracaibo indian enjoys roast-duck at discretion. he does not trouble his head much about the green peas, nor is he particular to have his ducks stuffed with sage and onions; but a hot seasoning of red pepper is one of the indispensible ingredients of the south-american _cuisine_; and this he usually obtains from a small patch of capsicum which he cultivates upon the adjacent shore; or, if he be not possessed of land, he procures it by barter, exchanging his fowls or fish for that and a little maize or manioc flour, furnished by the coast-traders. the maracaibo indian is not a stranger to commerce. he has been "christianised,"--to use the phraseology of his priestly proselytiser,-and this has introduced him to new wants and necessities. expenses that in his former pagan state were entirely unknown to him, have now become necessary, and a commercial effort is required to meet them. the church must have its dues. such luxuries as being baptised, married, and buried, are not to be had without expense, and the padre takes good care that none of these shall be had for nothing. he has taught his proselyte to believe that unless all these rites have been officially performed there is pot the slightest chance for him in the next world; and under the influence of this delusion, the simple savage willingly yields up his tenth, his fifth, or, perhaps it would be more correct to say, his all. between fees of baptism and burial, mulcts for performance of the marriage rite, contributions towards the shows and ceremonies of _dias de fiesta_, extravagant prices for blessed beads, leaden crucifixes, and images of patron saints, the poor christianised indian is compelled to part with nearly the whole of his humble gains; and the fear of not being able to pay for christian burial after death, is often one of the torments of his life. to satisfy the numerous demands of the church, therefore, he is forced into a little action in the commercial line. with the water-dweller of maracaibo, fish forms one of the staples of export trade,--of course in the preserved state, as he is too distant from any great town or metropolis to be able to make market of them while fresh. he understands, however, the mode of curing them,--which he accomplishes by sun-drying and smoking,--and, thus prepared, they are taken off his hands by the trader, who carries them all over the west indies, where, with boiled rice, they form the staple food of thousands of the dark-skinned children of ethiopia. the maracaibo indian, however, has still another resource, which occasionally supplies him with an article of commercial export. his country--that is, the adjacent shores of the lake--produces the finest _caoutchouc_. there the india-rubber tree, of more than one species, flourishes in abundance; and the true "seringa," that yields the finest and most valuable kind of this gummy juice, is nowhere found in greater perfection than in the forests of maracaibo. the caoutchouc of commerce is obtained from many other parts of america, as well as from other tropical countries; but as many of the bottles and shoes so well-known in the india-rubber shops, are manufactured by the indians of maracaibo, we may not find a more appropriate place to give an account of this singular production, and the mode by which it is prepared for the purposes of commerce and manufacture. as already mentioned, many species of trees yield india-rubber, most of them belonging either to the order of the "morads," or _euphorbiaceae_. some are species of _ficus_, but both the genera and species are too numerous to be given here. that which supplies the "bottle india-rubber" is a euphorbiaceous plant,--the _seringa_ above mentioned,--whose proper botanical appellation is _siphonia elastica_. it is a tall, straight, smooth-barked tree, having a trunk of about a foot in diameter, though in favourable situations reaching to much larger dimensions. the process of extracting its sap--out of which the caoutchouc is manufactured--bears some resemblance to the tapping of sugar-maples in the forests of the north. with his small hatchet, or tomahawk, the indian cuts a gash in the bark, and inserts into it a little wedge of wood to keep the sides apart. just under the gash, he fixes a small cup-shaped vessel of clay, the clay being still in a plastic state, so that it may be attached closely to the bark. into this vessel the milk-like sap of the _seringa_ soon commences to run, and keeps on until it has yielded about the fifth of a pint. this, however, is not the whole yield of a tree, but only of a single wound; and it is usual to open a great many gashes, or "taps," upon the same trunk, each being furnished with its own cup or receiver. in from four to six hours the sap ceases to run. the cups are then detached from the tree, and the contents of all, poured into a large earthen vessel, are carried to the place where the process of making the caoutchouc is to take place,--usually some dry open spot in the middle of the forest, where a temporary camp has been formed for the purpose. when the dwelling of the indian is at a distance from where the india-rubber tree grows,--as is the case with those of lake maracaibo,-it will not do to transport the sap thither. there must be no delay after the cups are filled, and the process of manufacture must proceed at once, or as soon as the milky juice begins to coagulate,--which it does almost on the instant. previous to reaching his camp, the "seringero" has provided a large quantity of palm-nuts, with which he intends to make a fire for smoking the caoutchouc. these nuts are the fruit of several kinds of palms, but the best are those afforded by two magnificent species,--the "inaja" (_maximiliana regia_), and the "urucuri" (_attalea excelsa_). a fire is kindled of these nuts; and an earthen pot, with a hole in the bottom, is placed mouth downward over the pile. through the aperture now rises a strong pungent smoke. if it is a shoe that is intended to be made, a clay last is already prepared, with a stick standing out of the top of it, to serve as a handle, while the operation is going on. taking the stick in his hand, the seringero dips the last lightly into the milk, or with a cup pours the fluid gently over it, so as to give a regular coating to the whole surface; and then, holding it over the smoke, he keeps turning it, jack-fashion, till the fluid has become dry and adhesive. another dip is then given, and the smoking done as before; and this goes on, till forty or fifty different coats have brought the sides and soles of the shoe to a proper thickness. the soles, requiring greater weight, are, of course, oftener dipped than the "upper leather." the whole process of making the shoe does not occupy half an hour; but it has afterwards to receive some farther attention in the way of ornament; the lines and figures are yet to be executed, and this is done about two days after the smoking process. they are simply traced out with a piece of smooth wire, or oftener with the spine obtained from some tree,--as the thorny point of the _bromelia_ leaf. in about a week the shoes are ready to be taken from the last; and this is accomplished at the expense and utter ruin of the latter, which is broken into fragments, and then cleaned out. water is used sometimes to soften the last, and the inner surface of the shoe is washed after the clay has been taken out. bottles are made precisely in the same manner,--a round ball, or other shaped mass of clay, serving as the mould for their construction. it requires a little more trouble to get the mould extracted from the narrow neck of the bottle. it may be remarked that it is not the smoke of the palm-nuts that gives to the india-rubber its peculiar dark colour; that is the effect of age. when freshly manufactured, it is still of a whitish or cream colour; and only attains the dark hue after it has been kept for a considerable time. we might add many other particulars about the mode in which the indian of maracaibo employs his time, but perhaps enough has been said to show that his existence is altogether an _odd_ one. chapter four. the esquimaux. the esquimaux are emphatically an "odd people," perhaps the oddest upon the earth. the peculiar character of the regions they inhabit has naturally initiated them into a system of habits and modes of life different from those of any other people on the face of the globe; and from the remoteness and inaccessibility of the countries in which they dwell, not only have they remained an unmixed people, but scarce any change has taken place in their customs and manners during the long period since they were first known to civilised nations. the esquimaux people have been long known and their habits often described. our first knowledge of them was obtained from greenland,-for the native inhabitants of greenland are true esquimaux,--and hundreds of years ago accounts of them were given to the world by the danish colonists and missionaries--and also by the whalers who visited the coasts of that inhospitable land. in later times they have been made familiar to us through the arctic explorers and whale-fishers, who have traversed the labyrinth of icy islands that extend northward from the continent of america. the esquimaux may boast of possessing the longest country in the world. in the first place, greenland is theirs, and they are found along the western shores of baffin's bay. in north america proper their territory commences at the straits of belle isle, which separate newfoundland from labrador, and thence extends all around the shore of the arctic ocean, not only to behring's straits, but beyond these, around the pacific coast of russian america, as far south as the great mountain saint elias. across behring's straits they are found occupying a portion of the asiatic coast, under the name of tchutski, and some of the islands in the northern angle of the pacific ocean are also inhabited by these people, though under a different name. furthermore, the numerous ice islands which lie between north america and the pole are either inhabited or visited by esquimaux to the highest point that discovery has yet reached. there can be little doubt that the laplanders of northern europe, and the samoyedes, and other littoral peoples dwelling along the siberian shores, are kindred races of the esquimaux; and taking this view of the question, it may be said that the latter possess all the line of coast of both continents facing northward; in other words, that their country extends around the globe--though it cannot be said (as is often boastingly declared of the british empire) that "the sun never sets upon it;" for, over the "empire" of the esquimaux, the sun not only sets, but remains out of sight of it for months at a time. it is not usual, however, to class the laplanders and _asiatic arctic_ people with the esquimaux. there are some essential points of difference; and what is here said of the esquimaux relates only to those who inhabit the northern coasts and islands of america, and to the native greenlanders. notwithstanding the immense extent of territory thus designated, notwithstanding the sparseness of the esquimaux population, and the vast distances by which one little tribe or community is separated from another, the absolute similarity in their habits, in their physical and intellectual conformation, and, above all, in their languages, proves incontestably that they are all originally of one and the same race. whatever, therefore, may be said of a "schelling," or native greenlander, will be equally applicable to an esquimaux of labrador, to an esquimaux of the mackenzie river or behring's straits, or we might add, to a khadiak islander, or a tuski of the opposite asiatic coast; always taking into account such differences of costume, dialect, modes of life, etc, as may be brought about by the different circumstances in which they are placed. in all these things, however, they are wonderfully alike; their dresses, weapons, boats, houses, and house implements, being almost the same in material and construction from east greenland to the tchutskoi noss. if their country be the longest in the world, it is also the _narrowest_. of course, if we take into account the large islands that thickly stud the arctic ocean, it may be deemed broad enough; but i am speaking rather of the territory which they possess on the continents. this may be regarded as a mere strip following the outline of the coast, and never extending beyond the distance of a day's journey inland. indeed, they only seek the interior in the few short weeks of summer, for the purpose of hunting the reindeer, the musk-ox, and other animals; after each excursion, returning again to the shores of the sea, where they have their winter-houses and more permanent home. they are, truly and emphatically, a _littoral_ people, and it is to the sea they look for their principal means of support. but for this source of supply, they could not long continue to exist upon land altogether incapable of supplying the wants even of the most limited population. the name _esquimaux_--or, as it is sometimes written, "eskimo,"--like many other national appellations, is of obscure origin. it is supposed to have been given to them by the canadian voyageurs in the employ of the hudson's bay company, and derived from the words _ceux qui miaux_ (those who mew), in relation to their screaming like cats. but the etymology is, to say the least, _suspicious_. they generally call themselves "inuit" (pronounced enn-oo-eet), a word which signifies "men;"--though different tribes of them have distinct tribal appellations. in personal appearance they cannot be regarded as at all prepossessing-though some of the younger men and girls, when cleansed of the filth and grease with which their skin is habitually coated, are far from ill-looking. their natural colour is not much darker than that of some of the southern nations of europe--the portuguese, for instance--and the young girls often have blooming cheeks, and a pleasing expression of countenance. their faces are generally of a broad, roundish shape, the forehead and chin both narrow and receding, and the cheeks very prominent, though not angular. on the contrary, they are rather fat and round. this prominence of the cheeks gives to their nose the appearance of being low and flat; and individuals are often seen with such high cheeks, that a ruler laid from one to the other would not touch the bridge of the nose between them! as they grow older their complexion becomes darker, perhaps from exposure to the climate. very naturally, too, both men and women grow uglier, but especially the latter, some of whom in old age present such a hideous aspect, that the early arctic explorers could not help characterising them as _witches_. the average stature of the esquimaux is far below that of european nations, though individuals are sometimes met with nearly six feet in height. these, however, are rare exceptions; and an esquimaux of such proportions would be a giant among his people. the more common height is from four feet eight inches to five feet eight; and the women are still shorter, rarely attaining the standard of five feet. the shortness of both men and women appears to be a deficiency in length of limb, for their bodies are long enough; but, as the esquimaux is almost constantly in his canoe, or "kayak," or upon his dog-sledge, his legs have but little to do, and are consequently stunted in their development. a similar peculiarity is presented by the comanche, and other indians of the prairies, and also in the guachos and patagonian indians, of the south-american pampas, who spend most of their time on the backs of their horses. the esquimaux have no religion, unless we dignify by that name a belief in witches, sorcerers, "shamans," and good or evil spirits, with, some confused notion of a good and bad place hereafter. missionary zeal has been exerted among them almost in vain. they exhibit an apathetic indifference to the teachings of christianity. neither have they any political organisation; and in this respect they differ essentially from most savages known, the lowest of whom have usually their chiefs and councils of elders. this absence of all government, however, is no proof of their being lower in the scale of civilisation than other savages; but, perhaps, rather the contrary, for the very idea of chiefdom, or government, is a presumption of the existence of vice among a people, and the necessity of coercion and repression. to one another these rude people are believed to act in the most honest manner; and it could be shown that such was likewise their behaviour towards strangers until they were corrupted by excessive temptation. all arctic voyagers record instances of what they term petty theft, on the part of certain tribes of esquimaux,--that is, the pilfering of nails, hatchets, pieces of iron-hoops, etc,--but it might be worth while reflecting that these articles are, in the eyes of the esquimaux, what ingots of gold are are to europeans, and worth while inquiring if a few bars of the last-mentioned metal were laid loosely and carelessly upon the pavements of london, how long they would be in changing their owners? theft should be regarded along with the amount of temptation; and it appears even in these recorded cases that only a few of the esquimaux took part in it. i apprehend that something more than a few londoners would be found picking up the golden ingots. how many thieves have we among us, with no greater temptation than a cheap cotton kerchief?--more than a few, it is to be feared. in truth, the esquimaux are by no means the savages they have been represented. the only important point in which they at all assimilate to the purely savage state is in the filthiness of their persons, and perhaps also in the fact of their eating much of their food (fish and flesh-meat) in a raw state. for the latter habit, however, they are partially indebted to the circumstances in which they are placed--fires or cookery being at times altogether impossible. they are not the only people who have been forced to eat raw flesh; and europeans who have travelled in that inhospitable country soon get used to the practice, at the same time getting quite cured of their _degout_ for it. it is certainly not correct to characterise the esquimaux as mere _savages_. on the contrary, they may be regarded as a civilised people, that is, so far as civilisation is permitted by the rigorous climate in which they live; and it would be safe to affirm that a colony of the most polished people in europe, established as the esquimaux are, and left solely to their own resources, would in a single generation exhibit a civilisation not one degree higher than that now met with among the esquimaux. indeed, the fact is already established: the danish and norwegian colonists of west greenland, though backed by constant intercourse with their mother-land, are but little more civilised than the "skellings," who are their neighbours. in reality, the esquimaux have made the most of the circumstances in which they are placed, and continue to do so. among them _agriculture_ is impossible, else they would long since have taken to it. so too is commerce; and as to manufactures, it is doubtful whether europeans could excel them under like circumstances. whatever raw material their country produces, is by them both strongly and neatly fabricated, as indicated by the surprising skill with which they make their dresses, their boats, their implements for hunting and fishing; and in these accomplishments--the only ones practicable under their hyperborean heaven--they are perfect adepts. in such arts civilised europeans are perfect simpletons to them, and the theories of fireside speculators, so lately promulgated in our newspapers, that sir john franklin and his crew could not fail to procure a living where the simple esquimaux were able to make a home, betrayed only ignorance of the condition of these people. in truth, white men would starve, where the esquimaux could live in luxurious abundance, so far superior to ours is their knowledge both of fishing and the chase. it is a well-recorded fact, that while our arctic voyagers, at their winter stations, provided with good guns, nets, and every appliance, could but rarely kill a reindeer or capture a seal, the esquimaux obtained both in abundance, and apparently without an effort; and we shall presently note the causes of their superiority in this respect. the very dress of the esquimaux is a proof of their superiority over other savages. at no season of the year do they go either naked, or even "ragged." they have their changes to suit the seasons,--their summer dress, and one of a warmer kind for winter. both are made in a most complicated manner; and the preparation of the material, as well as the manner by which it is put together, prove the esquimaux women--for they are alike the tailors and dressmakers--to be among the best seamstresses in the world. captain lyon, one of the most observant of arctic voyagers, has given a description of the costume of the esquimaux of savage island, and those of repulse bay, where he wintered, and his account is so graphic and minute in details, that it would be idle to alter a word of his language. his description, with slight differences in make and material, will answer pretty accurately for the costume of the whole race. "the clothes of both sexes are principally composed of fine and well-prepared reindeer pelts; the skins of bears, seals, wolves, foxes, and marmottes, are also used. the sealskins are seldom employed for any part of the dress except boots and shoes, as being more capable of resisting water, and of far greater durability than other leather. "the general winter dress of the men is an ample outer coat of deer-skin, having no opening in front, and a large hood, which is drawn over the head at pleasure. this hood is invariably bordered with white fur from the thighs of the deer, and thus presents a lively contrast to the dark face which it encircles. the front or belly part of the coat is cut off square with the upper part of the thighs, but behind it is formed into a broad skirt, rounded at the lower end, which reaches to within a few inches of the ground. the lower edges and tails of these dresses are in some cases bordered with bands of fur of an opposite colour to the body; and it is a favourite ornament to hang a fringe of little strips of skin beneath the border. the embellishments give a very pleasing appearance to the dress. it is customary in blowing weather to tie a piece of skin or cord tight round the waist of the coat; but in other cases the dress hangs loose. "within the covering i have just described is another, of precisely the same form; but though destitute of ornaments of leather, it has frequently little strings of beads hanging to it from the shoulders or small of the back. this dress is of thinner skin, and acts as a shirt, the hairy part being placed near the body: it is the indoors habit. when walking, the tail is tied up by two strings to the back, so that it may not incommode the legs. besides these two coats, they have also a large cloak, or, in fact, an open deer-skin, with sleeves: this, from its size, is more frequently used as a blanket; and i but once saw it worn by a man at the ship, although the women throw it over their shoulders to shelter themselves and children while sitting on the sledge. "the trowsers, which are tightly tied round the loins, have no waistbands, but depend entirely by the drawing-string; they are generally of deer-skin, and ornamented in the same manner as the coats. one of the most favourite patterns is an arrangement of the skins of deer's legs, so as to form very pretty stripes. as with the jackets, there are two pair of these indispensables, reaching no lower than the knee-cap, which is a cause of great distress in cold weather, as that part is frequently severely frost-bitten; yet, with all their experience of this bad contrivance, they will not add an inch to the established length. "the boots reach to the bottom of the breeches, which hang loosely over them. in these, as in other parts of the dress, are many varieties of colour, material, and pattern, yet in shape they never vary. the general winter boots are of deer-skin; one having the hair next the leg, and the other with the fur outside. a pair of soft slippers of the same kind are worn between the two pair of boots, and outside of all a strong sealskin shoe is pulled to the height of the ankle, where it is tightly secured by a drawing-string. for hunting excursions, or in summer when the country is thawed, one pair of boots only is worn. they are of sealskin, and so well sewed and prepared without the hair, that although completely saturated, they allow no water to pass through them. the soles are generally of the tough hide of the walrus, or of the large seal called oo-ghioo, so that the feet are well protected in walking over rough ground. slippers are sometimes worn outside. in both cases the boots are tightly fastened round the instep with a thong of leather. the mittens in common use are of deer-skin, with the hair inside; but, in fact, every kind of skin is used for them. they are extremely comfortable when dry; but if once wetted and frozen again, in the winter afford as little protection to the hands as a case of ice would do. in summer, and in fishing, excellent sealskin mittens are used, and have the same power of resisting water as the boots of which i have just spoken. the dresses i have just described are chiefly used in winter. during the summer it is customary to wear coats, boots, and even breeches, composed of the prepared skins of ducks, with the feathers next the body. these are comfortable, light, and easily prepared. the few ornaments in their possession are worn by the men. these are some bandeaus which encircle the head, and are composed of various-coloured leather, plaited in a mosaic pattern, and in some cases having human hair woven in them, as a contrast to the white skins. from the lower edge foxes' teeth hang suspended, arranged as a fringe across the forehead. some wear a musk-ox tooth, a bit of ivory, or a small piece of bone. "the clothing of the women is of the same materials as that of the men, but in shape almost every part is different from the male dress. an inner jacket is worn next the skin, and the fur of the other is outside. the hind-flap, or tail, is of the same form before described, but there is also a small flap in front, extending about halfway down the thigh. the coats have each an immense hood, which, as well as covering the head, answers the purpose of a child's cradle for two or three years after the birth of an infant. in order to keep the burden of the child from drawing the dress tight across the throat, a contrivance, in a great measure resembling the slings of a soldier's knapsack, is affixed to the collar or neck part, whence it passes beneath the hood, crosses, and, being brought under the arms, is secured on each side the breast by a wooden button. the shoulders of the women's coat have a bag-like space, for the purpose of facilitating the removal of the child from the hood round to the breast without taking it out of the jacket. "a girdle is sometimes worn round the waist: it answers the double purposes of comfort and ornament; being composed of what they consider valuable trinkets, such as foxes' bones (those of the rableeaghioo), or sometimes of the ears of deer, which hang in pairs to the number of twenty or thirty, and are trophies of the skill of the hunter, to whom the wearer is allied. the inexpressibles of the women are in the some form as those of the men, but they are not ornamented by the same curious arrangement of colours; the front part is generally of white, and the back of dark fur. the manner of securing them at the waist is also the same; but the drawing-strings are of much greater length, being suffered to hang down by one side, and their ends are frequently ornamented with some pendent jewel, such as a grinder or two of the musk-ox, a piece of ivory, a small ball of wood, or a perforated stone. "the boots of the fair sex are, without dispute, the most extraordinary part of their equipment, and are of such an immense size as to resemble leather sacks, and to give a most deformed, and, at the same time, ludicrous appearance to the whole figure, the bulky part being at the knee; the upper end is formed into a pointed flap, which, covering the front of the thigh, is secured by a button or knot within the waistband of the breeches. "some of these ample articles of apparel are composed with considerable taste, of various-coloured skins; they also have them of parchment,-seals' leather. two pairs are worn; and the feet have also a pair of sealskin slippers, which fit close, and are tightly tied round the ankle. "children have no kind of clothing, but lie naked in their mothers' hoods until two or three years of age, when they are stuffed into a little dress, generally of fawn-skin, which has jacket and breeches in one, the back part being open; into these they are pushed, when a string or two closes all up again. a cap forms an indispensable part of the equipment, and is generally of some fantastical shape; the skin of a fawn's head is a favourite material in the composition, and is sometimes seen with the ears perfect; the nose and holes for the eyes lying along the crown of the wearer's head, which in consequence, looks like that of an animal." the same author also gives a most graphic description of the curious winter dwellings of the esquimaux, which on many parts of the coast are built out of the only materials to be had,--_ice and snow_! snow for the walls and ice for the windows! you might fancy the house of the esquimaux to be a very cold dwelling; such, however, is by no means its character. "the entrance to the dwellings," says captain lyon, "was by a hole, about a yard in diameter, which led through a low-arched passage of sufficient breadth for two to pass in a stooping posture, and about sixteen feet in length; another hole then presented itself, and led through a similarly-shaped, but shorter passage, having at its termination a round opening, about two feet across. up this hole we crept one step, and found ourselves in a dome about seven feet in height, and as many in diameter, from whence the three dwelling-places, with arched roofs, were entered. it must be observed that this is the description of a large hut, the smaller ones, containing one or two families, have the domes somewhat differently arranged. "each dwelling might be averaged at fourteen or sixteen feet in diameter by six or seven in height, but as snow alone was used in their construction, and was always at hand, it might be supposed that there was no particular size, that being of course at the option of the builder. the laying of the arch was performed in such a manner as would have satisfied the most regular artist, the key-piece on the top, being a large square slab. the blocks of snow used in the buildings were from four to six inches in thickness, and about a couple of feet in length, carefully pared with a large knife. where two families occupied a dome, a seat was raised on either side, two feet in height. these raised places were used as beds, and covered in the first place with whalebone, sprigs of andromeda, or pieces of sealskin, over these were spread deer-pelts and deer-skin clothes, which had a very warm appearance. the pelts were used as blankets, and many of them had ornamental fringes of leather sewed round their edges. "each dwelling-place was illumined by a broad piece of transparent fresh-water ice, of about two feet in diameter, which formed part of the roof, and was placed over the door. these windows gave a most pleasing light, free from glare, and something like that which is thrown through ground glass. we soon learned that the building of a house was but the work of an hour or two, and that a couple of men--one to cut the slabs and the other to lay them--were labourers sufficient. "for the support of the lamps and cooking apparatus, a mound of snow is erected for each family; and when the master has two wives or a mother, both have an independent place, one at each end of the bench. "i find it impossible to attempt describing everything at a second visit, and shall therefore only give an account of those articles of furniture which must be always the same, and with which, in five minutes, any one might be acquainted. a frame, composed of two or three broken fishing-spears, supported in the first place a large hoop of wood or bone, across which an open-meshed, and ill-made net was spread or worked for the reception of wet or damp clothes, skins, etc, which could be dried by the heat of the lamp. on this contrivance the master of each hut placed his gloves on entering, first carefully clearing them of snow. "from the frame above mentioned, one or more coffin-shaped stone pots were suspended over lamps of the same material, crescent-shaped, and having a ridge extending along their back; the bowl part was filled with blubber, and the oil and wicks were ranged close together along the edge. the wicks were made of moss and trimmed by a piece of asbestos, stone, or wood; near at hand a large bundle of moss was hanging for a future supply. the lamps were supported by sticks, bones, or pieces of horn, at a sufficient height to admit an oval pot of wood or whalebone beneath, in order to catch any oil that might drop from them. the lamps varied considerably in size, from two feet to six inches in length, and the pots were equally irregular, holding from two or three gallons to half a pint. although i have mentioned a kind of scaffolding, these people did not all possess so grand an establishment, many being contented to suspend their pot to a piece of bone stuck in the wall of the hut. one young woman was quite a caricature in this way: she was the inferior wife of a young man, whose senior lady was of a large size, and had a corresponding lamp, etc, at one corner; while she herself, being short and fat, had a lamp the size of half a dessert-plate, and a pot which held a pint only. "almost every family was possessed of a large wooden tray, resembling those used by butchers in england; its offices, however, as we soon perceived, were more various, some containing raw flesh of seals and blubber, and others, skins, which were steeping in urine. a quantity of variously-sized bowls of whalebone, wood, or skin, completed the list of vessels, and it was evident that they were made to contain _anything_." the esquimaux use two kinds of boats,--the "oomiak" and "kayak." the oomiak is merely a large species of punt, used exclusively by the women; but the kayak is a triumph in the art of naval architecture, and is as elegant as it is ingenious. it is about twenty-five feet in length, and less than two in breadth of beam. in shape it has been compared to a weaver's shuttle, though it tapers much more elegantly than this piece of machinery. it is decked from stem to stern, excepting a circular hole very nearly amidships, and this round hatchway is just large enough to admit the body of an esquimaux in a sitting posture. around the rim of the circle is a little ridge, sometimes higher in front than at the back, and this ridge is often ornamented with a hoop of ivory. a flat piece of wood runs along each side of the frame, and is, in fact, the only piece of any strength in a kayak. its depth in the centre is four or five inches, and its thickness about three fourths of an inch; it tapers to a point at the commencement of the stem and stern projections. sixty-four ribs are fastened to this gunwale piece; seven slight rods run the whole length of the bottom and outside the ribs. the bottom is rounded, and has no keel; twenty-two little beams or cross-pieces keep the frame on a stretch above, and one strong batten runs along the centre, from stem to stern, being, of course, discontinued at the seat part. the ribs are made of ground willow, also of whalebone, or, if it can be procured, of good-grained wood. the whole contrivance does not weigh over fifty or sixty pounds; so that a man easily carries his kayak on his head, which, by the form of the rim, he can do without the assistance of his hands. an esquimaux prides himself in the neat appearance of his boat, and has a warm skin placed in its bottom to sit on. his posture is with the legs pointed forward, and he cannot change his position without the assistance of another person; in all cases where a weight is to be lifted, an alteration of stowage, or any movement to be made, it is customary for two kayaks to lie together; and the paddle of each being placed across the other, they form a steady double boat. an inflated seal's bladder forms, invariably, part of the equipage of a canoe, and the weapons are confined in their places by small lines of whalebone, stretched tightly across the upper covering, so as to receive the points or handles of the spears beneath them. flesh is frequently stowed within the stem or stern, as are also birds and eggs; but a seal, although round, and easily made to roll, is so neatly balanced on the upper part of the boat as seldom to require a lashing. when esquimaux are not paddling, their balance must be nicely preserved, and a trembling motion is always observable in the boat. the most difficult position for managing a kayak is when going before the wind, and with a little swell running. any inattention would instantly; by exposing the broadside, overturn this frail vessel. the dexterity with which they are turned, the velocity of their way, and the extreme elegance of form of the kayaks, render an esquimaux of the highest interest when sitting independently, and urging his course towards his prey. "the paddle is double-bladed, nine feet three inches in length, small at the grasp, and widening to four inches at the blades, which are thin, and edged with ivory for strength as well as ornament. "the next object of importance to the boat is the sledge, which finds occupation during at least three fourths of the year. a man who possesses both this and a canoe is considered a person of property. to give a particular description of the sledge would be impossible, as there are no two actually alike; and the materials of which they are composed are as various as their form. the best are made of the jaw-bones of the whale, sawed to about two inches in thickness, and in depth from six inches to a foot. these are the runners, and are shod with a thin plank of the same material; the side-pieces are connected by means of bones, pieces of wood, or deers' horns, lashed across, with a few inches space between each, and they yield to any great strain which the sledge may receive. the general breadth of the upper part of the sledge is about twenty inches; but the runners lean inwards, and therefore at bottom it is rather greater. the length of bone sledges is from four feet to fourteen. their weight is necessarily great; and one of moderate size, that is to say, about ten or twelve feet, was found to be two hundred and seventeen pounds. the skin of the walrus is very commonly used during the coldest part of the winter, as being hard-frozen, and resembling an inch board, with ten times the strength, for runners. another ingenious contrivance is, by casing moss and earth in seal's skin, so that by pouring a little water, a round hard bolster is easily formed. across all these kinds of runners there is the same arrangement of bones, sticks, etc, on the upper part; and the surface which passes over the snow is coated with ice, by mixing snow with fresh water, which assists greatly in lightening the load for the dogs, as it slides forwards with ease. boys frequently amuse themselves by yoking several dogs to a small piece of seal's skin, and sitting on it, holding by the traces. their plan is then to set off at full speed, and he who bears the greatest number of bumps before he relinquishes his hold is considered a very fine fellow. "the esquimaux possess various kinds of spears, but their difference is chiefly in consequence of the substances of which they are composed, and not in their general form. "one called ka-te-teek, is a large and strong-handled spear, with an ivory point made for despatching any wounded animal in the water. it is never thrown, but has a place appropriated for it on the kayak. "the oonak is a lighter kind than the former; also ivory-headed. it has a bladder fastened to it, and has a loose head with a line attached; this being darted into an animal, is instantly liberated from the handle which gives the impetus. some few of these weapons are constructed of the solid ivory of the unicorn's horn, about four feet in length, and remarkably well-rounded and polished. "ip-poo-too-yoo, is another kind of hand-spear, varying but little from the one last described. it has, however, no appendages. "the noogh-wit is of two kinds; but both are used for striking birds, young animals, or fish. the first has a double fork at the extremity, and there are three other barbed ones at about half its length, diverging in different directions, so that if the end pair should miss, some of the centre ones might strike. the second kind has only three barbed forks at the head. all the points are of ivory, and the natural curve of the walrus tusk favours and facilitates their construction. "amongst the minor instruments of the ice-hunting are a long bone feeler for plumbing any cracks through which seals are suspected of breathing, and also for trying the safety of the road. another contrivance is occasionally used with the same effect as the float of a fishing-line. its purpose it to warn the hunter, who is watching a seal-hole, when the animal rises to the surface, so that he may strike without seeing, or being seen, by his prey. this is a most delicate little rod of bone or ivory, of about a foot in length, and the thickness of a fine knitting-needle. at the lower end is a small knob like a pin's head, and the upper extremity has a fine piece of sinew tied to it, so as to fasten it loosely to the side of the hole. the animal, on rising, does not perceive so small an object hanging in the water, and pushes it up with his nose, when the watchful esquimaux, observing his little beacon in motion, strikes down, and secures his prize. "small ivory pegs or pins are used to stop the holes made by the spears in the animal's body; thus the blood, a great luxury to the natives, is saved. "the same want of wood which renders it necessary to find substitutes in the construction of spears, also occasions the great variety of bows. the horn of the musk-ox, thinned horns of deer, or other bony substances, are as frequently used or met with as wood, in the manufacture of these weapons, in which elasticity is a secondary consideration. three or four pieces of horn or wood are frequently joined together in one bow,--the strength lying alone in a vast collection of small plaited sinews; these, to the number of perhaps a hundred, run down the back of the bow, and being quite tight, and having the spring of catgut, cause the weapon, when unstrung, to turn the wrong way; when bent, their united strength and elasticity are amazing. the bowstring is of fifteen to twenty plaits, each loose from the other, but twisted round when in use, so that a few additional turns will at any time alter its length. the general length of the bows is about three feet and a half. "the arrows are short, light, and formed according to no general rule as to length or thickness. a good one has half the shaft of bone, and a head of hard slate, or a small piece of iron; others have sharply-pointed bone heads: none are barbed. two feathers are used for the end, and are tied opposite each other, with the flat sides parallel. a neatly-formed case contains the bow and a few arrows. sealskin is preferred for this purpose, as more effectually resisting the wet than any other. a little bag, which is attached to the side, contains a stone for sharpening, and some spare arrow-heads carefully wrapped up in a piece of skin. "the bow is held in a horizontal position, and though capable of great force, is rarely used at a greater distance than from twelve to twenty yards." their houses, clothing, sledges, boats, utensils, and arms, being now described, it only remains to be seen in what manner these most singular people pass their time, how they supply themselves with food, and how they manage to support life during the long dark winter, and the scarce less hospitable summer of their rigorous clime. their occupations from year to year are carried on with an almost unvarying regularity, though, like their dresses, they change according to the season. their short summer is chiefly employed in hunting the reindeer, and other quadrupeds,--for the simple reason that it is at this season that these appear in greatest numbers among them, migrating northward as the snow thaws from the valleys and hill-sides. not but that they also kill the reindeer in other seasons, for these animals do not all migrate southward on the approach of winter, a considerable number remaining all the year upon the shores of the arctic sea, as well as the islands to the north of them. of course, the esquimaux kills a reindeer when and where he can; and it may be here remarked, that in no part of the american continent has the reindeer been trained or domesticated as among the laplanders and the people of russian asia. neither the northern indians (tinne) nor the esquimaux have ever reached this degree in domestic civilisation, and this fact is one of the strongest points of difference between the american esquimaux and their kindred races in the north of asia. one tribe of true esquimaux alone hold the reindeer in subjection, viz the tuski, already mentioned, on the asiatic shore; and it might easily be shown that the practice reached them from the contiguous countries of northern asia. the american esquimaux, like those of greenland, possess only the dog as a domesticated animal; and him they have trained to draw their sledges in a style that exhibits the highest order of skill, and even elegance. the esquimaux dog is too well-known to require particular description. he is often brought to this country in the return ships of arctic whalers and voyagers; and his thick, stout body covered closely with long stiff hair of a whitish or yellowish colour, his cocked ears and smooth muzzle, and, above all, the circle-like curling of his bushy tail, will easily be remembered by any one who has ever seen this valuable animal. in summer, then, the esquimaux desert their winter houses upon the shore, and taking with them their tents make an excursion into the interior. they do not go far from the sea--no farther than is necessary to find the valleys browsed by the reindeer, and the fresh-water lakes, which, at this season, are frequented by flocks of swans, geese of various kinds, ducks, and other aquatic birds. hunting the reindeer forms their principal occupation at this time; but, of course, "all is fish that comes into the net" of an esquimaux; and they also employ themselves in capturing the wild fowl and the fresh-water fish, in which these lakes abound. with the wild fowl it is the breeding and moulting season, and the esquimaux not only rob them of their eggs, but take large numbers of the young before they are sufficiently fledged to enable them to fly, and also the old ones while similarly incapacitated from their condition of "moult." in their swift kayaks which they have carried with them on their heads, they can pursue the fluttering flocks over any part of a lake, and overtake them wherever they may go. this is a season of great plenty in the larder of the _inuit_. the fresh-water fish are struck with spears out of the kayaks, or, when there is ice on the water strong enough to bear the weight of a man, the fish are captured in a different manner. a hole is broken in the ice, the broken fragments are skimmed off and cast aside, and then the fisherman lets down a shining bauble--usually the white tooth of some animal--to act as a bait. this he keeps bobbing about until the fish, perceiving it afar off through the translucent water, usually approaches to reconnoitre, partly from curiosity, but more, perhaps, to see if it be anything to eat. when near enough the esquimaux adroitly pins the victim with his fish spear, and lands it upon the ice. this species of fishing is usually delivered over to the boys--the time of the hunters being too valuable to be wasted in waiting for the approach of the fish to the decoy, an event of precarious and uncertain occurrence. in capturing the reindeer, the esquimaux practises no method very different from that used by "still hunters" in other parts of america. he has to depend alone upon his bow and arrows, but with these poor weapons he contrives to make more havoc among a herd of deer than would a backwoods hunter with his redoubtable rifle. there is no mystery about his superior management. it consists simply in the exhibition of the great strategy and patience with which he makes his approaches, crawling from point to point and using every available cover which the ground may afford. but all this would be of little avail were it not for a _ruse_ which he puts in practice, and which brings the unsuspecting deer within reach of his deadly arrows. this consists in a close imitation of the cries of the animal, so close that the sharp-eared creature itself cannot detect the counterfeit, but, drawing nearer and nearer to the rock or bush from which the call appears to proceed, falls a victim to the deception. the silent arrow makes no audible sound; the herd, if slightly disturbed at seeing one of their number fall, soon compose themselves, and go on browsing upon the grass or licking up the lichen. another is attracted by the call, and another, who fall in their turn victims either to their curiosity or the instinct of amorous passions. for this species of hunting, the bow far excels any other weapon; even the rifle is inferior to it. sometimes the esquimaux take the deer in large numbers, by hunting them with dogs, driving the herd into some defile or _cul de sac_ among the rocks, and then killing them at will with their arrows and javelins. this, however, is an exceptional case, as such natural "pounds" are not always at hand. the indians farther south construct artificial enclosures; but in the esquimaux country there is neither time nor material for such elaborate contrivances. the esquimaux who dwell in those parts frequented by the musk-oxen, hunt these animals very much as they do the reindeer; but killing a musk bull, or cow either, is a feat of far grander magnitude, and requires more address than shooting a tiny deer. i have said that the esquimaux do not, even in these hunting excursions, stray very far into the interior. there is a good reason for their keeping close to the seashore. were they to penetrate far into the land they would be in danger of meeting with their _bitter_ foemen, the _tinne_ indians, who in this region also hunt reindeer and musk-oxen. war to the knife is the practice between these two races of people, and has ever been since the first knowledge of either. they often meet in conflict upon the rivers inland, and these conflicts are of so cruel and sanguinary a nature as to imbue each with a wholesome fear of the other. the indians, however, dread the esquimaux more than the latter fear them; and up to a late period took good care never to approach their coasts; but the musket and rifle have now got into the hands of some of the northern tribes, who avail themselves of these superior weapons, not only to keep the esquimaux at bay, but also to render them more cautious about extending their range towards the interior. when the dreary winter begins to make its appearance, and the reindeer grow scarce upon the snow-covered plains, the esquimaux return to their winter villages upon the coast. quadrupeds and birds no longer occupy their whole attention, for the drift of their thoughts is now turned towards the inhabitants of the great deep. the seal and the walrus are henceforth the main objects of pursuit. perhaps during the summer, when the water was open, they may have visited the shore for the purpose of capturing that great giant of the icy seas--a whale. if so, and they have been successful in only one or two captures, they may look forward to a winter of plenty--since the flesh of a full-grown whale, or, better still, a brace of such ample creatures, would be sufficient to feed a whole tribe for months. they have no curing process for this immense carcass; they stand in need of none. neither salt nor smoking is required in their climate. jack frost is their provision curer, and performs the task without putting them either to trouble or expense. it is only necessary for them to hoist the great flitches upon scaffolds, already erected for the purpose, so as to keep the meat from the wolves, wolverines, foxes, and their own half-starved dogs. from their aerial larder they can cut a piece of blubber whenever they feel hungry, or they have a mind to eat, and this _mind_ they are in so long as a morsel is left. their mode of capturing a whale is quite different from that practised by the whale-fishers. when the huge creature is discovered near, the whole tribe sally forth, and surround it in their kayaks; they then hurl darts into its body, but instead of these having long lines attached to them, they are provided with sealskins sewed up air-tight and inflated, like bladders. when a number of these become attached to the body of the whale, the animal, powerful though he be, finds great difficulty in sinking far down, or even progressing rapidly through the water. he soon rises to the surface, and the sealskin buoys indicate his whereabouts to the occupants of the kayaks, who in their swift little crafts, soon dart up to him again, and shoot a fresh volley into his body. in this way the whale is soon "wearied out," and then falls a victim to their larger spears, just as in the case where a capture is made by regular, whalers. i need scarcely add that a success of this kind is hailed as a jubilee of the tribe, since it not only brings a benefit to the whole community, but is also a piece of fortune of somewhat rare occurrence. when no whales have been taken, the long, dark winter may justly be looked forward to with some solicitude; and it is then that the esquimaux requires to put forth all his skill and energies for the capture of the walrus or the seal--the latter of which may be regarded as the staff of his life, furnishing him not only with food, but with light, fuel, and clothing for his body and limbs. of the seals that inhabit the polar seas there are several species; but the common seal (_calocephalus vitulina_) and the harp-seal (_calocephalus groenlandicus_) are those most numerous, and consequently the principal object of pursuit. the esquimaux uses various stratagems for taking these creatures, according to the circumstances in which they may be encountered; and simpletons as the seals may appear, they are by no means easy of capture. they are usually very shy and suspicious, even in places where man has never been seen by them. they have other enemies, especially in the great polar bear; and the dread of this tyrant of the icy seas keeps them ever on the alert. notwithstanding their watchfulness, however, both the bear and the biped make great havoc among them, and each year hundreds of thousands of them are destroyed. the bear, in capturing seals, exhibits a skill and cunning scarce excelled by that of the rational being himself. when this great quadruped perceives a seal basking on the edge of an ice-field, he makes his approaches, not by rushing directly towards it, which he well knows would defeat his purpose. if once seen by the seal, the latter has only to betake himself to the water, where it can soon sink or swim beyond the reach of the bear. to prevent this, the bear gets well to leeward, and then diving below the surface, makes his approaches under water, now and then cautiously raising his head to get the true bearings of his intended victim. after a number of these subaqueous "reaches," he gets close in to the edge of the floe in such a position as to cut off the seal's retreat to the water. a single spring brings him on the ice, and then, before the poor seal has time to make a brace of flounders, it finds itself locked in the deadly embrace of the bear. when seals are thus detected asleep, the esquimaux approaches them in his kayak, taking care to paddle cautiously and silently. if he succeed in getting between them and the open water, he kills them in the ordinary way--by simply knocking them on the snout with a club, or piercing them with a spear. sometimes, however, the seal goes to sleep on the surface of the open water. then the approach is made in a similar manner by means of the kayak, and the animal is struck with a harpoon. but a single blow does not always kill a seal, especially if it be a large one, and the blow has been ill-directed. in such cases the animal would undoubtedly make his escape, and carry the harpoon along with it, which would be a serious loss to the owner, who does not obtain such weapons without great difficulty. to prevent this, the esquimaux uses a contrivance similar to that employed in the capture of the whale,--that is, he attaches a float or buoy to his harpoon by means of a cord, and this so impedes the passage of the seal through the water, that it can neither dive nor swim to any very great distance. the float is usually a walrus bladder inflated in the ordinary way, and wherever the seal may go, the float betrays its track, enabling the esquimaux to follow it in his shuttle-shaped kayak, and pierce it again with a surer aim. in winter, when the sea is quite covered with ice, you might fancy that the seal-fishery would be at an end, for the seal is essentially a marine animal; and although it can exist upon the ice or on dry land, it could not _subsist_ there. access to the water it must have, in order to procure its food, which consists of small fish and molluscs. of course, when the ice forms on the surface, the seal is in its true element--the water underneath--but when this ice becomes, as it often does, a full yard in thickness, extending over hundreds of miles of the sea, how then is the seal to be got at? it could not be reached at all; and at such a season the esquimaux people would undoubtedly starve, were it not for a habit peculiar to this animal, which, happily for them, brings it within their reach. though the seal can live under water like a fish, and probably could pass a whole winter under the ice without much inconvenience, it likes now and then to take a little fresh air, and have a quiet nap upon the upper surface in the open air. with this design it breaks a hole through the ice, while the latter is yet thin, and this hole it keeps carefully open during the whole winter, clearing out each new crust as it forms. no matter to what thickness the ice may attain, this hole always forms a breathing-place for the seal, and a passage by which he may reach the upper surface, and indulge himself in--his favourite siesta in the open air. knowing this habit, the esquimaux takes advantage of it to make the seal his captive. when the animal is discovered on the ice, the hunter approaches with the greatest stealth and caution. this is absolutely necessary: for if the enemy is perceived, or makes the slightest noise, the wary seal flounders rapidly into his hole, and is lost beyond redemption. if badly frightened, he will not appear for a long time, denying himself his open air exercise until the patience of his persecutor is quite worn out, and the coast is again clear. in making his approaches, the hunter uses all his art, not only taking advantage of every inequality--such as snow-drifts and ice-hillocks--to conceal himself; but he also practises an ingenious deception by dressing himself in the skin of a seal of like species, giving his body the figure of the animal, and counterfeiting its motions, by floundering clumsily over the ice, and oscillating his head from side to side, just as seals are seen to do. this deception often proves successful, when the hunter under any other shape would in vain endeavour to get within striking distance of his prey. when seals are scarce, and the supply greatly needed, the esquimaux often lies patiently for hours together on the edge of a seal-hole waiting for the animal to come up. in order to give it time to get well out upon the ice, the hunter conceals himself behind a heap of snow, which he has collected and piled up for the purpose. a float-stick, ingeniously placed in the water of the breathing-hole, serves as a signal to tell when the seal is mounting through his trap-like passage, the motion of the stick betraying its ascent. the hunter then gets himself into the right attitude to strike, and summons all his energies for the encounter. even during the long, dark night of winter this mode of capturing the seal is practised. the hunter, having discovered a breathing-hole-which its dark colour enables him to find--proceeds in the following manner: he scrapes away the snow from around it, and lifting up some water pours it on the ice, so as to make a circle of a darker hue around the orifice. he then makes a sort of cake of pure white snow, and with this covers the hole as with a lid. in the centre of this lid he punches a small opening with the shaft-end of his spear, and then sits down and patiently awaits the issue. the seal ascends unsuspiciously as before. the dark water, bubbling up through the small central orifice, betrays its approach, which can be perceived even in the darkest night. the hunter does not wait for its climbing out upon the ice. perhaps if he did so, the suspicious creature might detect the device, and dive down again. but it is not allowed time for reflection. before it can turn its unwieldly body, the heavy spear of the hunter--struck through the yielding snow--descends upon its skull, and kills it on the instant. the great "walrus" or "morse" (_trichecus rosmarus_) is another important product of the polar seas, and is hunted by the esquimaux with great assiduity. this splendid amphibious animal is taken by contrivances very similar to those used for the seal; but the capture of a walrus is an event of importance, second only to the striking of a whale. its great carcass not only supplies food to a whole village, but an oil superior to that of the whale, besides various other useful articles. its skin, bones, and intestines are employed by the esquimaux for many domestic purposes,--and, in addition, there are the huge molar tusks, that furnish one of the most valuable ivories of commerce, from which are manufactured those beautiful sets of teeth, of dazzling whiteness, that, gleaming between vermilion lips, you may often see at a ball or an evening party! chapter five. mundrucus, or beheaders. in our general sketch of the amazonian indians it was stated that there were some few tribes who differed in certain customs from all the rest, and who might even be regarded as _odd among the odd_. one of these tribes is the _mundrucu_, which, from its numbers and warlike strength, almost deserves to be styled a nation. it is, at all events, a powerful confederacy, of different tribes, linked together in one common nationality, and including in their league other indians which the mundrucus themselves first conquered, and afterwards associated with themselves on terms of equality; in other words, "annexed" them. the same sort of annexation or alliance is common among the tribes of north america; as in the case of the powerful comanche nation, who extend their protecting alliance over the wacoes, washites, and cayguaas or kioways. the _mahue_ is the principal tribe that is patronised in this fashion by the mundrucus, and the two together number at least 20,000 souls. before the days of the portuguese slave-hunting, the mundrucus occupied the south bank of the amazon, from the mouth of the tapajos to that of the madeira. this infamous traffic had the effect of clearing the banks of the great river of its native inhabitants,--except such of them as chose to submit to slavery, or become _neophytes_, by adopting the monkish faith. neither of these courses appeared pleasing in the eyes of the mundrucus, and they adopted the only alternative that was likely to insure their independence,--by withdrawing from the dangerous proximity of the sanguinary slave-trade. this retreat of the mundrucus, however, was by no means an ignominious flight. the withdrawal was voluntary on their part, and not compulsory, as was the case with weaker tribes. from the earliest times they had presented a firm front to the portuguese encroachments, and the latter were even forced into a sort of nefarious alliance with them. the leaving the amazon on the part of the mundrucus was rather the result of a negotiation, by which they conceded their territory--between the mouths of the tapajos and madeira--to the brazilian government; and to this hour they are not exactly unfriendly to brazilian _whites_, though to the mulattoes and negroes, who constitute a large proportion of the brazilian population, the mundrucu knows no other feeling than that of a deadly hostility. the origin of their hatred of the brazilian blacks is to be found in a revolt which occurred in the provinces of the lower amazon (at para) in 1835. it was a _caste_ revolution against whites, but more especially against _european_ portuguese. in this affair the mundrucus were employed against the darker-skinned rebels--the _gabanos_, as they were called--and did great service in putting down the rebellion. hence they retain a lingering spark of friendship for their _ci-devant_ white allies; or perhaps it would be more correct to say they do not actually hate them, but carry on a little commerce with their traders. for all that, they occasionally cut the throats of a few of the latter,--especially those who do not come to deal directly with them, but who pass through their country in going from the amazon to the diamond mines of brazil. these last are called _moncaos_, and their business is to carry supplies from the towns on the amazon (santarem and para) to the miners of gold and washers of diamonds in the district of matto grosso, of which cuiaba is the capital. their route is by water and "portage" up the tapajos river, and through the territory of the dreaded mundrucus,--requiring a journey of six months, as perilous and toilsome as it is tedious. the present residence of the mundrucus is between the tapajos and madeira, as formerly, but far up on both rivers. on the tapajos, above what are known as the "caxoeiras," or cataracts, their villages are found. there they dwell, free from all molestation on the part of the whites; their borders extending widely around them, and limited only by contact with those of other warlike tribes like themselves, who are their deadly enemies. among these last are the _muras_, who dwell at the mouths of the madeira and rio negro. the mundrucus build the _malocca_, elsewhere described; only in their case it is not used as a dwelling, but rather as a grand arsenal, a council-chamber, a ballroom, and, if need be, a fortress. when fearing an attack, all sleep in it "under arms." it is a structure of large size and great strength, usually rendered more unassailable by being "chinked" and plastered with clay. it is in this building that are deposited those horrid trophies which have given to the mundrucus their terrible title of _decapitadores_, or "beheaders." the title and its origin shall be presently explained. around the great malocca the huts are placed, forming a village, and in these the people ordinarily dwell. the mundrucus are not without ample means of subsistence. like most other amazonian tribes, they cultivate a little manioc, plantains, and even maize; and they know how to prepare the _farinha_ meal, and, unfortunately, also the detestable _chicha_, the universal beverage of the south-american aborigines. they have their vessels of calabash-both of the vegetable and arborescent kinds--and a full set of implements and utensils for the field and kitchen. their war weapons are those common to other amazonian tribes, and they sometimes also carry the spear. they have canoes of hollow trees; and, of course, fishing and hunting are the employments of the men,--the women, as almost everywhere else among indians, doing the drudgery,--the tilling and reaping, the "hewing of wood and the drawing of water," the making the household utensils and using them,--all such offices being beneath the dignity of the "lordly," or rather _lazy_ savage. i have said that they carry on a commercial intercourse with the white traders. it is not of much magnitude, and their exports consist altogether of the native and spontaneous productions of the soil, sarsaparilla being one of the chief articles. they gather this (the women and children do) during six months of the year. the other six months no industry is followed,--as this period is spent in hostile excursions against the neighbouring tribes. their imports consist of iron tools and pieces for weapons; but they more especially barter the product of their labour for ornamental gewgaws,--such as savages universally admire and desire. their sarsaparilla is good, and much sought for in the medical market. every one is acquainted with the nature and character of this valuable medicinal root, the appearance of which must also be known to almost everybody,--since it is so very common for our druggists to display the bundles of it in their shop windows. perhaps every one is not acquainted with the fact, that the sarsaparilla root is the product of a great many different species of plants most of them of the genus _simlax_, but not a few belonging to plants of other genera, as those of _carex_ and _herreria_ the roots of which are also sold as sarsaparilla. the species of simlax are widely distributed throughout the whole torrid zone, in asia, africa, and america, and some kinds are found growing many degrees outside the tropics,--as is the case in virginia and the valley of the mississippi, and also on the other side of the pacific on the great continent-island of australia. the best sarsaparilla, however, is that which is produced in tropical countries, and especially in moist situations, where the atmosphere is at once hot and humid. it requires these conditions to concentrate the virtue of its sap, and render it more active. it would be idle to give a list of the different species of simlax that furnish the sarsaparilla root of the pharmacopeia. there is an almost endless number of them, and they are equally varied in respect to excellence of quality; some kinds are in reality almost worthless, and for this reason, in using it as a medicine, great care should be taken in the selection of the species. like all other articles, either of food or medicine, the valuable kinds are the scarcest; the reason in this case being that the best sarsaparilla is found in situations not only difficult of access, but where the gathering of its root is attended with considerable danger, from the unhealthy nature of the climate and the hostility of the savages in whose territory it grows. as to the quantity that may be obtained, there is no limit, on the score of any scarcity of the plant itself, since it is found throughout all the countries of tropical america plenteously distributed both in species and individual plants. such quantities of it grow along the banks of some south-american rivers, that the indians have a belief that those streams known as _black waters_--such as the rio negro and others--derive their peculiar colour from the roots of this plant. this, however, is an erroneous supposition, as there are many of the _white-water_ rivers that run through regions abundantly supplied with the sarsaparilla root. the black water, therefore, must arise from some other cause, as yet unknown. as observed, the sarsaparilla of the mundrucu country is of the very best quality. it is the _simlax papyracea_ of soiret, and is known in commerce as the "lisbon," or "brazilian." it is a climbing plant, or under-shrub, the stem of which is flattened and angular, with rows of prickles standing along the prominent edges. its leaves are of an oval acuminated shape, and marked with _longitudinal_ nerves. it shoots without any support, to a height of fifteen or twenty feet, after which it embraces the surrounding branches of trees and spreads to a great distance in every direction. the main root sends out many long tendrils, all of like thickness, covered with a brownish bark, or sometimes of a dark-grey colour. these tendrils are fibrous, and about as thick as a quill. they present a constant tendency to become crooked, and they are also wrinkled longitudinally, with here and there some smaller lateral fibres branching off from the sides. it is in the bark or epidermis of the rhizomes that the medicinal virtue lies; but the tendrils--both rhizome and bark--are collected together, and no attempt is made to separate them, until they have reached their commercial destination. indeed, even these are sold together, the mode of preparing the root being left to the choice of the consumer, or the apothecary who procures it. the mundrucus collect it during the six months of the rainy season, partly because during the remaining six they are otherwise employed, and partly for the reason that, in the time of rain, the roots are more easily extracted from the damp soil. the process simply consists in digging them up or dragging them out of the earth--the latter mode especially where the tendrils lie near the surface, and they will pull up without breaking. if the main root be not dug out, it will send forth new tendrils, which in a short time would yield a new crop; but the improvident savages make no prudential calculations of this kind-present convenience forming their sole consideration; and on this account both the root and plant are generally destroyed by them during the operation of collecting. as already stated, this labour devolves upon the women, who are also assisted in it by their children. they proceed into the depths of the forest--where the simlax grows in greatest abundance--and after collecting as much root as they can carry home with them, they return with their bundles to the malocca when fresh gathered the sarsaparilla is heavy enough--partly on account of the sap which it then contains, and partly from the quantity of the mud or earth that adheres to the corrugated surface of the roots. it is extremely probable that in this fresh state the virtue of the sarsaparilla, as a blood-purifier, is much greater than after it has passed through the channels of commerce; and the writer of this sketch has some reason, derived from personal experience, to believe that such is the case. certain it is, that the reputation of this invaluable drug is far less in countries where the plant does not grow, than in those where it is common and can be obtained in its fresh state. in all parts of spanish america its virtues are unquestioned, and experience has led to a more extensive use of it there than elsewhere. it is probable, therefore, that the virtue exists in the juice rather than the cortical integument of the rhizome; and this of course would be materially altered and deteriorated, if not altogether destroyed, in the process of exsiccation, which must necessarily take place in the time required for transporting it to distant parts of the world. in the european pharmacopeia it is the epidermis of the root which is supposed to contain the sanitary principle; and this, which is of a mucilaginous nature and slightly bitter taste, is employed, both in decoctions and infusions, as a tonic and alterative. in america, however, it is generally taken for what is termed _purifying the blood_--for the same purpose as the rhizomes of the _lauras sassafras_ and other plants are used; but the sarsaparilla is generally considered the best, and it certainly _is_ the best of all known medicines for this purpose. why it has fallen in the estimation of the old world practitioners, or why it never obtained so great a reputation as it has in america, may arise from two circumstances. first, that the root offered for sale is generally the product of the less valuable species; and second, that the sap, and not the rhizome, may be the part that contains the virtuous principle. when the collected roots have been kept for awhile they become dry and light, and for the convenience of stowage and carriage--an important consideration to the trader in his eight-ton _garratea_--it is necessary to have the roots done up in packages of a uniform length and thickness. these packages are formed by laying the roots side by side, and doubling in the ends of the longer ones. a bundle of the proper size for stowage contains an _arroba_ of twenty-five pounds, though the weight varies according to the condition of the root. uniformity in size is the chief object aimed at, and the bundles are made of a round or cylindrical shape, about five inches in diameter, and something more than a yard in length. they are trimmed off small at the ends--so as to admit of stowage without leaving any empty space between two tiers of them--and each bundle is tightly corded round from one end to the other with a "sipo," or creeping plant. it has been stated that this "sipo" is a root of the sarsaparilla itself, with the bark scraped off; and, indeed, its own root would serve well enough--were it not that putting it to such a use would destroy its medicinal value, and thus cause a considerable waste of the costly material. the sarsaparilla is not to be had for nothing even upon the banks of the tapajos. a bundle of the best quality does not leave the hands of the mundrucu until about four dollars' worth of exchange commodities have been put into them, which would bring the price of it to something over sixpence a pound. he is, therefore, a little particular about wasting a material that has cost him--or rather his wife and children--so much trouble in collecting. his cordage is obtained more cheaply, and consists of the long, flexible roots of a species of _pothos_, which roots--being what are termed _aerial_ and not buried in the ground--require no labour or digging to get at them. it is only necessary to stretch up the hand, and pull them down from the tops of lofty trees, from which they hang like streamers, often to the length of a hundred feet. these are toughened by the bark being scraped off; and when that is done they are ready for use, and serve not only to tie up the bundles of sarsaparilla, but for many other purposes in the domestic economy of the mundrucus. in addition to the sarsaparilla, the mundrucu furnishes the trader with several other items of commercial value--for his climate, although one of the most unhealthy in all the amazon region, on account of its great heat and humidity, is for that very reason one of the most fertile. nearly all those tropical vegetable products which are characteristics of brazilian export commerce can here be produced of the most luxuriant kind; but it is only those that grow spontaneously at his very doors that tempt the mundrucu to take the trouble of collecting them. there is one article however, which he not only takes some trouble to collect, but also to manufacture into an item of commercial exchange--a very rare item indeed. this is the _guarana_, which is manufactured from the fruit of a tree almost peculiar to the mundrucu territory-since nowhere is it found so abundantly as on the tapajos. it is so prized in the brazilian settlements as to command almost its weight in silver when transported thither. it is the constituent element of a drink, which has a stimulating effect on the system, somewhat more powerful than tea or coffee. it will prevent sleep; but its most valuable property is, that it is a good febrifuge, equal to the best quinine. _guarana_ is prepared from the seeds of an inga--one of the _mimosacae_. it is a low, wide-spreading tree like most of the mimosa family. the legumes are gathered, and the seeds roasted in them. the latter are then taken out, and after being ground to powder, are mixed with water so as to make a tough paste, which is moulded into little bricks, and when dried is ready for use. the beverage is then prepared by scraping a table-spoonful of dust from the brick, and mixing it with about a pint of water; and the dry paste, keeping for any length of time, is ready whenever wanted. the _guarana_ bush grows elsewhere in the amazon valley, and on some headwaters of the orinoco, where certain tribes also know how to prepare the drink. but it is sparingly distributed, and is nowhere so common as on the upper tapajos hence its high price in the markets of brazil. the mundrucu manufactures it, not only for "home use," but for "exportation." he prepares another singular article of luxury, and this he makes exclusively for his own use,--not for the gratification of his lips or palate, but for his nose,--in other words, a snuff. do not fancy, however, that it is snuff of the ordinary kind--the pulverised produce of innocent tobacco. no such thing; but a composition of such a powerful and stimulating character, that he who inhales it feels as if struck by an electric shock; his body trembles; his eyes start forward as if they would forsake their sockets; his limbs fail to support him; and he drops to the earth like one in a state of intoxication! for a short time he is literally mad; but the fit is soon over,--lasting usually only a few minutes,--and then a feeling of renewed strength, courage, and joyousness succeeds. such are the consequences of taking snuff with a mundrucu. and now to describe the nature of the substance which produces these powerful effects. like the _guarana_ this snuff is a preparation, having for its basis the seeds of a leguminous tree. this time, however, it is an _acacia_, not an _inga_. it is the _acacia niopo_; so called because "niopo" is the name given to the snuff itself by certain tribes (the ottomacs and others), who, like the mundrucus, are snuff-takers. it is also called _curupa_, and the apparatus for preparing and taking it--for there is an apparatus of an extensive kind--is termed _parica_, in the general language (_lingoa geral_) of the amazonian regions. we shall describe the preparation, the apparatus, and the ceremonial. the pods of the _acacia niopo_--a small tree, with very delicate pinnate leaves--are plucked when ripe. they are then cut into small pieces and flung into a vessel of water. in this they remain until macerated, and until the seeds have turned black. these are then picked out, pounded in a mortar, which is usually the pericarp of the _sapucaia_, or "monkey-pot" tree (_lecythys ollaria_). the pounding reduces them to a paste, which is taken up, clapped between the hands and formed into little cakes--but not until it has been mixed with some manioc flour, some lime from a burnt shell (a _helix_), and a little juice from the fresh leaves of the "abuta"--a menispermous plant of the genus _cocculus_. the cakes are then dried or "barbecued" upon a primitive gridiron--the bars of which are saplings of hard wood--and when well-hardened the snuff is ready for the "box." in a box it is actually carried--usually one made out of some rare and beautiful shell. the ceremonial of taking the snuff is the most singular part of the performance. when a mundrucu feels inclined for a "pinch"--though it is something more than a _pinch_ that he inhales when he _does_ feel inclined--he takes the cake out of the box, scrapes off about a spoonful of it into a shallow, saucer-shaped vessel of the calabash kind, and then spreads the powder all over the bottom of the vessel in a regular "stratification." the spreading is not performed by the fingers, but with a tiny, pencil-like brush made out of the bristles of the great ant-eater (_myrmecophaga jubata_). he is in no hurry, but takes his time,--for as you may guess from its effects, the performance is not one so often repeated as that of ordinary snuff-taking. when the _niopo_ dust is laid to his liking, another implement is brought into play, the construction of which it is also necessary to describe. it is a "machine" of six to eight inches in length, and is made of two quills from the wing of the _gaviao real_, or "harpy eagle" (_harpyia destructor_). these quills are placed side by side for the greater part of their length, forming two parallel tubes, and they are thus neatly whipped together by a thread. at one end they are pressed apart so as to diverge to a width corresponding to the breadth between the mundrucu's nostrils,--where it is intended they shall be placed during the ceremony of snuff-taking. and thus are they placed,--one end of each quill being slightly intruded within the line of the septum, while the other end rests upon the snuff, or wanders over the surface of the saucer, till all the powder placed there is drawn up and inhaled, producing the convulsive effects already detailed. the shank-bone of a species of bird--thought to be a plover--is sometimes used instead of the quills. it is hollow, and has a forking-tube at the end. this kind is not common or easily obtained, for the niopo-taker who has one, esteems it as the most valuable item of his apparatus. snuffing the niopo is not exclusively confined to the mundrucu. we have seen elsewhere that it is also a habit of the dirt-eating ottomacs; and other tribes on the upper amazon practise it. but the mahues, already mentioned as the allies of the mundrucus, are the most confirmed snuff-takers of all. another odd custom of the mundrucus is their habit of "tatooing." i speak of real tatooing,--that is, marking the skin with dots and lines that cannot be effaced, in contradistinction to mere _painting_, or staining, which can easily be washed off. the mundrucus paint also, with the _anotto_, _kuitoc_, _caruta_, and other pigments, but in this they only follow the practice of hundreds of other tribes. the true _tatoo_ is a far different affair, and scarcely known among the aborigines of america, though common enough in the islands of the south sea. a few other indian tribes practise it to a limited extent,--as is elsewhere stated,--but among the mundrucus it is an "institution;" and painful though the process be, it has to be endured by every one in the nation, "every mother's son," and daughter as well, that are cursed with a mundrucu for their father. it is upon the young people the infliction is performed,--when they are about eight or ten years of age. the _tatoo_ has been so often described, that i should not repeat it here; but there are a few "points" peculiar to mundrucu tatooing, and a few others, not elsewhere understood. the performance is usually the work of certain old crones, who, from long practice, have acquired great skill in the art. the chief instrument used is a comb of thorns,--not a single thorn, as is generally stated,--but a tier or row of them set comb-fashion. these thorns are the spines of the "murumuru," or "pupunha" palm (_gullielmia speciosa_). humboldt states that this palm is smooth and spineless, but in this the great, good man was in error. its trunk is so covered with thorns or spines, that when the indians require to climb it--for the purpose of procuring the valuable fruits, which they eat variously prepared--they have to erect a staging, or rude sort of ladder, to be able to get at them. the comb, then, is pressed down upon the skin of the "tatooee," till all the points have penetrated the flesh, and a row of holes is laid open, from which the blood flows profusely. as soon as this can be wiped off, ashes of a burnt gum or pitch are rubbed into the wounds, which, when healed, appear like so many dots of a deep bluish or black colour. in this way the young mundrucus, both boys and girls, get those regular rows of dotted lines, which traverse their forehead and cheeks, their arms and limbs, breasts, and bodies in such eccentric fashion. it has often been asked how these lines of dots were carried over the skin in such straight and symmetrical rows, forming regular parallel lines, or other geometrical patterns. the "comb" will explain the mystery. the tatoo, with a few strings of shell-beads or necklaces, and bracelets of monkey and jaguar teeth, is all the dress which is permitted to the mundrucu belle. in mundrucu-land it is the reverse of what is practised among civilised people: the men are the exponents of the fashions, and keep exclusively to themselves the cosmetics and bijouterie. not contented with being tatooed, these also _paint_ their bodies, by way of "overcoat," and also adorn themselves with the bright feathers of birds. they wear on their heads the beautiful circlet of macaw-plumes, and on grand occasions appear in the magnificent "feather dress," so long celebrated as the peculiar costume of the tropical-forest indian. these dresses their women weave and border, at a sacrifice of much tedious labour. they also ornament their arms and legs with rows of feathers around them, the tips turned upward and backward. the tatooing is confined to the mundrucus proper,--their allies, the mahues not following the practice, but contenting themselves with a simple "coat" of paint. it is difficult to say what motive first inducted human beings into this singular and barbarous custom. it is easier to tell why it is still followed, and the "why" is answered by saying that the mundrucus "scarify" themselves, because their fathers did so before them. many a custom among civilised nations, but little less ridiculous, if we could only think so, rests upon a similar basis. perhaps our modern abominable hat--though it has a different origin--is not less ludicrous than the tatooed patterns of the savage. certainly it is quite equal to it in ugliness, and is likely to rival it in permanence,--to our sorrow be it said. but even _we_ deal slightly in the tatoo. our jolly jack would be nobody in the forecastle without "polly," in blue, upon his weather-beaten breast, and the _foul anchor_ upon his arm. but the mundrucu baptises his unfortunate offspring in a still more savage fashion. the tattoo may be termed the _baptism in blood_, performed at the tender age of ten. when the youth--fortunately it does not extend to the weaker sex--has attained to the age of eighteen, he has then to undergo the _tocandeira_, which deserves to be called _the baptism of fire_! this too merits description. when the mundrucu youth would become a candidate for manhood, a pair of "_gloves_" is prepared for him. these consist of two pieces of a palm-tree bark, with the pith hollowed out, but left in at one end. the hollow part is of sufficient diameter to draw over the hands loosely, and so long as to reach up to mid-arm, after the fashion of gauntlets. the "gloves" being got ready, are nearly filled with ants, not only the venomous red ants, but all other species, large or small, that can either bite or sting, of which tropical south america possesses an endless variety. with this "lining" the "mittens" are ready for use, and the "novice" is compelled to draw them on. should he refuse, or even exhibit a disposition to shrink from the fiery trial, he is a lost man. from that hour he need never hold up his head, much less offer his hand and heart, for there is not a maiden in all mundrucu-land that would listen to his softest speech. he is forever debarred from the pleasure of becoming a benedict. of course he does not refuse, but plunging his hands into the "mittens," into the very midst of the crawling host, he sets about the ceremony. he must keep on the gloves till he has danced before every door in the village. he must sing as if from very joy; and there is plenty of music to accompany him, drums and fifes, and human voices,--for his parents and relatives are by his side encouraging him with their songs and gestures. he is in pain,--in positive agony,--for these venomous ants both sting and bite, and have been busy at both from the very first moment. each moment his agony grows more intense, his sufferings more acute, for the poison is thrilling through his veins,--he turns pale,-his eyes become blood-cast,--his breast quivers with emotion and his limbs tremble beneath him; but despite all this, woe to him if he utter a cry of weakness! it would brand him with an eternal stigma,--he would never be suffered to carry the mundrucu lance to battle,--to poise upon its point the ghastly trophy of the _beheaders_. on, on, through the howling throng, amidst friends and relatives with faces anxious as his own; on to the sound of the shrill-piping reed and the hoarse booming of the indian drum; on till he stands in front of the cabin of the chief! there again the song is sung, the "jig" is danced, both proudly prolonged till the strength of the performer becomes completely exhausted. then, and not till then, the gloves are thrown aside, and the wearer falls back, into the arms of his friends, "sufficiently punished!" this is the hour of congratulation. girls gather round him, and fling their tatooed arms about his neck. they cluster and cling upon him, singing his song of triumph; but just at that crisis he is not in the mood for soft caresses; and, escaping from their blandishments, he makes a rush towards the river. on reaching its bank he plunges bodily in, and there remains up to his neck in the water, till the cooling fluid has to some extent eased his aching arms, and tranquillised the current of his boiling blood. when he emerges from the water, he is a man, fit stuff for a mundrucu warrior, and eligible to the hand of a mundrucu maiden. it may be remarked that this terrible ordeal of the mundrucus, though, perhaps, peculiar among south-american indians, has its parallel among certain tribes of the north,--the mandans and others, as detailed by catlin, one of the most acute of ethnological observers. the _scalp trophy_, too, of the northern indian has its analogy in a mundrucu custom--that which distinguishes him most of all, and which has won for him the terrible title of "beheader." this singular appellation is now to be explained. when a mundrucu has succeeded in killing an enemy, he is not, like his northern compeer, satisfied with only the skin of the head. _he must have the whole head_, scalp and skull, bones, brains, and all! and he takes all, severing the head with his knife by a clean cut across the small of the neck, and leaving the trunk to the vulture king. with the ghastly trophy poised upon the point of his lance, he returns triumphant to the malocca to receive the greetings of his tribe and the praises of his chief. but the warlike exploit requires a memento--some token by which he may perpetuate its fame. the art of printing does not exist among the mundrucus, and there is no friendly pen to record the deed. it has been done,--behold the evidence! much clearer than often accompanies the exploits of civilised heroes. there is the evidence of an enemy slain; there is the grim, gory voucher, palpable both to sight and touch--proof positive that there is a dead body somewhere. of course, such evidence is sufficient for the present; but how about the future? as time passes, the feat may be forgotten, as great deeds are elsewhere. somebody may even deny it. some slanderous tongue may whisper, or insinuate, or openly declare that it was no exploit after all--that there was no dead man; for the vultures by this time would have removed the body, and the white ants (_termites_) would have equally extinguished all traces of the bones. how, then, are the proofs to be preserved? _by preserving the head_! and this is the very idea that is in the mind of the mundrucu warrior. he is resolved not to permit his exploit to be buried in oblivion by _burying the head_ of his enemy. that tongue, though mute, will tell the tale to posterity; that pallid cheek, though, perhaps, it may become a little shrivelled in the "drying," will still be smooth enough to show that there is no _tatoo_, and to be identified as the skin of an enemy. some young mundrucu, yet unborn, will read in the countenance of that grinning and gory witness, the testimony of his father's prowess. the head, therefore, must be preserved; and it is preserved with as much care as the cherished portrait of a famous ancestor. the cranial relic is even _embalmed_, as if out of affection for him to whom it belonged. the brains and eye-balls are removed, to facilitate the process of desiccation; but false eyes are inserted, and the tongue, teeth, and ears, scalp, skull, and hair, are all retained, not only retained, but "titivated" out in the most approved style of fashion. the long hair is carefully combed out, parted, and arranged; brilliant feathers of rock-cock and macaw are planted behind the ears and twisted in the hanging tresses. an ornamental string passes through the tongue, and by this the trophy is suspended from the beams of the great malocca. it is not permitted to remain there. in some dark niche of this golgotha--this mundruquin westminster--it might be overlooked and forgotten. to prevent this it is often brought forth, and receives many an airing. on all warlike and festive occasions does it appear, poised upon the point of the warrior's lance; and even in peaceful times it may be seen--along with hundreds of its like--placed in the circular row around the manioc clearing, and lending its demure countenance to the labours of the field. it is not a little singular that this custom of embalming the heads of their enemies is found among the dyaks of borneo, and the process in both places is ludicrously similar. another rare coincidence occurs between the amazonian tribes and the bornean savages, viz in both being provided with the blow-gun. the _gravitana_ of the american tribes is almost identical with the sumpitan of borneo. it furnishes a further proof of our theory regarding an original connection between the american indians and the savages of the great south sea. the mundrucu is rarely ill off in the way of food. when he is so, it is altogether his own fault, and chargeable to his indolent disposition. the soil of his territory is of the most fertile kind, and produces many kinds of edible fruits spontaneously, as the nuts of the _pupunha_ palm and the splendid fruits of the _bertholetia excelsa_, or juvia-tree, known in europe as "brazil-nuts." of these then are two kinds, as mentioned elsewhere, the second being a tree of the genus _lecythys_,-the _lecythys ollaria_, or "monkey-pot" tree. it obtains this trivial name from the circumstance, first, of its great pericarp, almost as large as a child's head, having a movable top or lid, which falls off when the fruit ripens; and secondly, from the monkeys being often seen drawing the seeds or nuts out of that part of the shell which remains attached to the tree, and which, bearing a considerable resemblance to a pot in its shape, is thus very appropriately designated the pot of the monkeys. the common indian name of the monkey-pot tree is _sapucaia_, and the nuts of this species are so called in commerce, though they are also termed brazil-nuts. they are of a more agreeable flavour than the true brazil-nuts, and not so easily obtained, as the _lecythys_ is less generally distributed over the amazonian valley. it requires a peculiar soil, and grows only in those tracts that are subject to the annual inundations of the rivers. the true brazil-nuts are the "juvia" trees of the indians; and the season for collecting them is one of the _harvests_ of the mundrucu people. the great pericarps--resembling large cocoa-nuts when stripped of the fibres--do not open and shed their seeds, as is the case with the monkey-pot tree. the whole fruit falls at once; and as it is very heavy, and the branches on which it grows are often nearly a hundred feet from the ground, it may easily be imagined that it comes down like a ten-pound shot; in fact, one of them falling upon the head of a mundrucu would be very likely to crush his cranium, as a bullet would an egg-shell; and such accidents not unfrequently occur to persons passing imprudently under the branches of the bertholetia when its nuts are ripe. sometimes the monkeys, when on the ground looking after those that have fallen, become victims to the like accident; but these creatures are cunning reasoners, and being by experience aware of the danger, will scarce ever go under a juvia-tree, but when passing one always make a wide circuit around it. the monkeys cannot of themselves open the great pericarp, as they do that of the "sapucaia," but are crafty enough to get at the precious contents, notwithstanding. in doing this they avail themselves of the help of other creatures, that have also a motive in opening the juvia shells--cavies and other small rodent animals, whose teeth, formed for this very purpose, enable them to gnaw a hole in the ligneous pericarps, hard and thick as they are. meanwhile the monkeys, squatted around, watch the operation in a careless, nonchalant sort of way, as if they had no concern whatever in the result; but as soon as they perceive that an entrance has been effected, big enough to admit their hand, they rush forward, drive off the weaker creature, who has been so long and laboriously at work, and take possession of the prize. neither does the mundrucu nut-gatherer get possession of the juvia fruit without a certain degree of danger and toil. he has to climb the tallest trees, to secure the whole crop at one time; and while engaged in collecting those upon the ground, he is in danger of a blow from odd ones that are constantly falling. to secure his skull against accidents, he wears upon his head a thick wooden cap or helmet,--after the fashion of the hats worn by our firemen,--and he is always careful to keep his body in an upright attitude, stooping as seldom as he can avoid doing so, lest he might get a thump between the shoulders, or upon the spine of his back, which would be very likely to flatten him out upon the earth. these brazil-nuts furnish the mundrucu with a portion of his food,--as they also do many other tribes of amazonian indians,-and they are also an item of indian commerce, being collected from among the different tribes by the portuguese and spanish traders. but the mundrucu does not depend altogether on the spontaneous productions of the forest, which at best furnish only a precarious supply. he does something in the agricultural line,--cultivating a little manioc root, with, plantains, yams, and other tropical plants that produce an enormous yield with the very slightest trouble or attention; and this is exactly what suits him. a few days spent by the little community in the yam patch--or rather, by the women and children, for these are the agricultural labourers in mundrucu-land--is sufficient to ensure an abundant supply of bread-stuff for the whole year. with regard to flesh-meat he is not so well off, for the domestic animals, and oxen more especially, do not thrive in the amazon country. in mundrucu-land, the carnivorous jaguar, aided by flies and vampire bats, would soon destroy them, even if the indian had the inclination to raise them, which he has not. instead of beef, therefore, he contents himself with fish, and occasionally a steak from the great tapir, or a griskin of _manati_. birds, too, furnish him with an occasional meal; but the staple article of his flesh diet is obtained from the _quadrumana_,--the numerous species of monkeys with which his forests abound. these he obtains by shooting them down from the trees with his bow and arrows, and also by various other hunting devices. his mode of cooking them is sufficiently peculiar to be described. a large log fire is first kindled and permitted to burn until a sufficient quantity of red cinders are produced. over these cinders a grating is erected with green saplings of wood, laid parallel to each other like the bars of a gridiron, and upon this the "joint" is laid. nothing is done to the monkey before its being placed on the gridiron. its skin is not removed, and even the intestines are not always taken out. the fire will singe off the hair sufficiently to content a mundrucu stomach, and the hide is broiled and eaten, with the flesh. it is thus literally "carne con cuero." it may be observed that this forest gridiron, or "barbecue," as it is properly termed, is not an idea exclusively confined to south america. it is in use among the indians of the north, and various uncivilised tribes in other parts of the world. sometimes the mundrucu does not take the trouble to construct the gridiron. when on the march in some warlike expedition that will not allow time for being particular about the mode of cooking, the joint is broiled upon a spit over the common fire. the spit is simply a stick, sharpened at both ends, one of which impales the monkey, and the other is stuck into the ground. the stick is then set with a lean towards the fire, so as to bring the carcass over the blaze. while on the spit the monkey appears in a sitting position, with its head upward, and its long tail hanging along the sapling,--just as if it were still living, and in one of its most natural attitudes, clinging to the branch of a tree! the sight is sufficiently comical; but sometimes a painful spectacle has been witnessed,--painful to any one but a savage: when the young of the monkey has been captured along with its dam, and still recognising the form of its parent,--even when all the hair has been singed off, and the skin has become calcined by the fire,--is seen rushing forward into the very flames, and with plaintive cry inviting the maternal embrace! such an affecting incident has been often witnessed amid the forests of amazopia. we conclude our sketch of the mundrucus, by stating that their form of government is despotic, though not to an extreme degree. the "tushao," or chief, has considerable power, though it is not absolute, and does not extend to the taking of life,--unless the object of displeasure be a slave, and many of these are held in abject bondage among the mundrucus. the mundrucu religion resembles that of many other tribes both in north and south america. it consists in absurd ceremonies, and appeals to the good and evil spirits of the other world, and is mixed up with a vast deal of quackery in relation to the ills that afflict the mundrucu in this life. in other words, it is a combination of the priest and doctor united in one, that arch-charlatan known to the north-american indians as the "medicine-man," and among the mundrucus as the "puge." chapter six. the centaurs of the "gran chaco." i have elsewhere stated that a broad band of independent indian territory--that is, territory never really subdued or possessed by the spaniards--traverses the interior of south america, extending longitudinally throughout the whole continent. beginning at cape horn, it ends in the peninsula of the free _goajiros_, which projects into the caribbean sea,--in other words, it is nearly 5,000 miles in length. in breadth it varies much. in patagonia and a portion of the pampas country it extends from the atlantic to the pacific, and it is of still wider extent on the latitude of the amazon river, where the whole country, from the atlantic to the peruvian andes,--with the exception of some thinly-placed brazilian settlements,--is occupied by tribes of independent indians. at either point this territory will appear--upon maps--to be interrupted by tracts of country possessing civilised settlements. the names of towns and villages are set as thickly as if the country were well peopled; and numerous roads are traced, forming a labyrinthine network upon the paper. a broad belt of this kind extends from the lower parana (la plate) to the andes of chili, constituting the upper provinces of the "argentine confederation;" another apparently joins the settlements of bolivia and brazil; and again in the north, the provinces of venezuela appear to be united to those of new granada. all this, however, is more apparent than real. the towns upon the maps are in general mere _rancherias_, or collections of huts; some of them are the names of fortified posts, and a large proportion are but ruins,--the ruins of monkish mission settlements long since gone to destruction, and with little else than the name on the map to testify that they ever had an existence. the roads are no roads at all, nothing more than tracings on the chart showing the general route of travel. even across the argentine provinces--where this nomenclature appears thickest upon the map--the horse indian of the pampas extends his forays at will; his "range" meeting, and, in some cases, "dovetailing" into that of the tribes dwelling upon the northern side of these settlements. the latter, in their turn, carry their plundering expeditions across to the campos parexis, on the headwaters of the amazon, whence stretches the independent territory, far and wide to the amazon itself; thence to the orinoco, and across the _llanos_ to the shores of the maracaibo gulf--the free range of the independent goajiros. this immense belt of territory, then, is in actual possession of the aborigines. although occupied at a few points by the white race,-spanish and portuguese,--the occupation scarce deserves the name. the settlements are sparse and rather _retrograde_ than _progressive_. the indian ranges through and around them, wherever and whenever his inclination leads him; and only when some humiliating treaty has secured him a temporary respite from hostilities does the colonist enjoy tranquillity. at other times he lives in continual dread, scarce daring to trust himself beyond the immediate vicinity of his house or village, both of which he has been under the necessity of fortifying. it is true that at one period of south-american history things were not quite so bad. when the spanish nation was at the zenith of its power a different condition existed; but even then, in the territory indicated, there were large tracts circumstanced just as at the present hour,-tracts which the spaniards, with all their boasted warlike strength, were unable even to _explore_, much less to subdue. one of these was that which forms the subject of our sketch, "el gran chaco." of all the tracts of wild territory existing in south america, and known by the different appellations of _pampas, paramos, campos parexis_, the _puna_, the _pajonal, llanos_, and _montanas_, there is none possessed of a greater interest than that of _el gran chaco_,--perhaps not one that equals it in this respect. it is interesting, not only from having a peculiar soil, climate, and productions, but quite as much from the character and history of its inhabitants, both of which present us with traits and episodes truly romantic. the "gran chaco" is 200,000 square miles in extent, or twice the size of the british isles. its eastern boundary is well-defined, being the paraguay river, and its continuation the parana, down to the point where the latter receives one of its great western tributaries, the salado; and this last is usually regarded as the southern and western boundary of the chaco. northward its limits are scarcely so definite; though the highlands of bolivia and the old missionary province of chiquitos, forming the water-shed between the rivers of the la plata and the amazonian basins--may be geographically regarded as the termination of the chaco in that direction. north and south it extends through eleven degrees of latitude; east and west it is of unequal breadth,--sometimes expanding, sometimes contracting, according to the ability of the white settlers along it borders to maintain their frontier. on its eastern side, as already stated, the frontier is definite, and terminates on the banks of the paraguay and parana. east of this line--coinciding almost with a meridian of longitude--the indian of the gran chaco does not roam, the well-settled province of corrientes and the dictatorial government of paraguay presenting a firmer front of resistance; but neither does the colonist of these countries think of crossing to the western bank of the boundary river to form any establishment there. he dares not even set his foot upon the territory of the chaco. for a thousand miles, up and down, the two races, european and american, hold the opposite banks of this great stream. they gaze across at each other: the one from the portico of his well-built mansion, or perhaps from the street of his town; the other, standing by his humble "toldo," or mat-covered tent,--more probably, upon the back of his half-wild horse, reined up for a moment on some projecting promontory that commands the view of the river. and thus have these two races gazed at each other for three centuries, with little other intercourse passing between them than that of a deadly hostility. the surface of the gran chaco is throughout of a champaign character. it may be described as a vast plain. it is not, however, a continuation of the pampas, since the two are separated by a more broken tract of country, in which lie the sierras of cordova and san luis, with the argentine settlements already mentioned. besides, the two great plains differ essentially in their character, even to a greater extent than do the pampas themselves from the desert steppes of patagonia. only a few of the animal and vegetable productions of the gran chaco are identical with those of the pampas, and its indian inhabitants are altogether unlike the sanguinary savages of the more southern plain. the chaco, approaching many degrees nearer to the equator, is more tropical in its character; in fact, the northern portion of it is truly so, lying as it does within the torrid zone, and presenting the aspect of a tropical vegetation. every inch of the chaco is within the palm region; but in its northern half these beautiful trees abound in numberless species, yet unknown to the botanist, and forming the characteristic features of the landscape. some grow in forests of many miles in extent, others only in "clumps," with open, grass-covered plains between, while still other species mingle their graceful fronds with the leaves and branches of dicotyledonous trees, or clasped in the embrace of luxuriant llianas and parasitical climbers form groves of the most variegated verdure and fantastic outlines. with such groves the whole surface of the chaco country is enamelled; the intervals between being occupied by plains of rich waving grass, now and then tracts of morass covered with tall and elegant reeds, a few arid spots bristling with singular forms of _algarobia_ and _cactus_, and, in some places, isolated rocky mounds, of dome or conical shape, rising above the general level of the plains, as if intended to be used as watch-towers for their guardianship and safety. such are the landscapes which the grand chaco presents to the eye--far different from the bald and uniform monotony exhibited in the aspect of either prairie or pampa; far grander and lovelier than either--in point of scenic loveliness, perhaps, unequalled on earth. no wonder, then, that the indian of south america esteems it as an earthly elysium; no wonder that the spaniard dreams of it as such,--though to the spanish priest and the spanish soldier it has ever proved more of a purgatory than a paradise. both have entered upon its borders, but neither has been able to dwell within its domain; and the attempts at its conquest, by sword and cross, have been alike unsuccessful,--equally and fatally repulsed, throughout a period of more than three hundred years. at this hour, as at the time of the peruvian conquest,--as on the day when the ships of mendoza sailed up the waters of the parana,--the gran chaco is an unconquered country, owned by its aboriginal inhabitants, and by them alone. it is true that it is _claimed_, both by spaniard and portuguese; and by no less than four separate claimants belonging to these two nationalities. brazil and bolivia, paraguay and the argentine confederation, all assert their title to a slice of this earthly paradise; and even quarrel as to how their boundary lines should intersect it! there is something extremely ludicrous in these claims,--since neither one nor other of the four powers can show the slightest basis for them. not one of them can pretend to the claim of conquest; and far less can they rest their rights upon the basis of occupation or possession. so far from possessing the land, not one of them dare set foot over its borders; and they are only too well pleased if its present occupants are contented to remain within them. the claim, therefore, of both spaniard and portuguese, has no higher title, than that some three hundred and fifty years ago it was given them by the pope,--a title not less ludicrous than their kissing the pope's toe to obtain it! in the midst of these four conflicting claimants, there appears a fifth, and that is the real owner,--the "red indian" himself. his claim has "three points of the law" in his favour,--possession,--and perhaps the fourth, too,--the power to keep possession. at all events, he has held it for three hundred years against all odds and all comers; and who knows that he may not hold it for three hundred years more?--only, it is to be hoped, for a different use, and under the influence of a more progressive civilisation. the indian, then, is the undoubted lord of the "gran chaco." let us drop in upon him, and see what sort of an indian he is, and how he manages this majestic domain. after having feasted our eyes upon the rich scenery of the land,--upon the verdant plains, mottled with copses of "quebracho" and clumps of the _caranday_ palm,--upon landscapes that resemble the most lordly parks, we look around for the mansions and the owners. the mansion is not there, but the owner stands before us. we are at once struck by his appearance: his person tall, and straight as a reed, his frame muscular, his limbs round and well-proportioned, piercing coal-black eyes, well-formed features, and slightly aquiline nose,--and perhaps we are a little surprised at the light colour of his skin. in this we note a decided peculiarity which distinguishes him from most other tribes of his race. it is not a _red_ indian we behold, nor yet a _copper-coloured_ savage; but a man whose complexion is scarce darker than that of the mulatto, and not at all deeper in hue than many a spaniard of andalusian descent, who boasts possession of the purest "sangre azul;" not one shade darker than thousands of portuguese dwelling upon the other side of the brazilian frontier. and remember, that it is the _true_ skin of the chaco indian we have before our view,--and not a _painted_ one,--for here, almost for the first time, do we encounter the native complexion of the aboriginal, undisfigured by those horrid pigments which in these pages have so often glared before the eyes of our readers. of paint, the chaco indian scarce knows the use; or, at all events, employs it sparingly, and only at intervals, on very particular and ceremonial occasions. we are spared, therefore, the describing his _escutcheon_, and a positive relief it is. it would be an interesting inquiry to trace out the cause of his thus abstaining from a custom almost universal among his race. why does he abjure the paint? is it because he cannot afford it, or that it is not procurable in his country? no; neither of these can be offered as a reason. the "annotto" bush (_bixa orellana_), and the wild-indigo, abound in his territory; and he knows how to extract the colours of both,--for his women do extract them, and use them in dying the yarn of their webs. other dyewoods--a multitude of others--he could easily obtain; and even the cochineal cactus, with its gaudy vermilion parasite, is indigenous to his land. it cannot be the scarcity of the material that prevents him from employing it,--what then? the cause is unexplained; but may it not be that this romantic savage, otherwise more highly gifted than the rest of his race, is endowed also with a truer sense of the beautiful and becoming? _quien sabe_? let it not be understood, however, that he is altogether free from the "taint,"--for he _does_ paint sometimes, as already admitted; and it must be remembered, moreover, that the chaco indians are not all of one tribe, nor of one community. there are many associations of them scattered over the face of this vast plain, who are not all alike, either in their habits or customs, but, on the contrary, very unlike; who are not even at all times friendly with each other, but occupied with feuds and _vendettas_ of the most deadly description. some of these tribes paint most frightfully, while others of them go still farther, and _scarify_ their faces with the indelible _tattoo_,--a custom that in america is almost confined to the indians of the chaco and a few tribes on the southern tributaries of the amazon. happily this custom is on the decline: the men practise it no longer; but, by a singular perversity of taste, it is still universal among the women, and no chaco belle would be esteemed beautiful without a cross of bluish-black dots upon her forehead, a line of like points extending from the angle of each eye to the ears, with a variety of similar markings upon her cheeks, arms, and bosom. all this is done with the point of a thorn,--the spine of a _mimosa_, or of the _caraguatay_ aloe; and the dark purple colour is obtained by infusing charcoal into the fresh and bleeding punctures. it is an operation that requires days to complete, and the pain from it is of the most acute and prolonged character, enduring until the poisoned wounds become cicatrised. and yet it is borne without a murmur,--just as people in civilised life bear the painful application of hair-dyes and tweezers. i need not say that the hair of the chaco indian does not need to be dyed,--that is, unless he were to fancy having it of a white, or a red, or yellow colour,--not an uncommon fancy among savages. his taste, however, does not run that way any more than among civilised dandies, and he is contented with its natural hue, which is that of the raven's wing. but he is not contented to leave it to its natural growth. only a portion of it,--that which covers the upper part of his head,--is permitted to retain its full length and flowing glories. for the remainder, he has a peculiar _tonsure_ of his own; and the hair immediately over the forehead--and sometimes a stripe running all around above the ears, to the back of the head--is either close shaven with a sharp shell, or plucked entirely out by a pair of horn tweezers of native manufacture. were it not that the long and luxuriant tresses that still remain,--covering his crown, as with a crest,--the shorn circle would assimilate him to some orders of friars; but, notwithstanding the similarity of tonsure, there is not much resemblance between a chaco indian and a brother of the crucifix and cowl. this mode of "dressing the hair" is not altogether peculiar to the indian of the gran chaco. it is also practised by certain prairie tribes,--the osage, pawnee, and two or three others; but all these carry the "razor" a little higher up, leaving a mere patch, or "scalp-lock," upon the crown. the chaco tribes are beardless by nature; and if a few hairs chance to show themselves upon cheek or chin, they are carefully "wed" out. in a like fashion both men and women serve their eyebrows and lashes,-sacrificing these undoubted ornaments, as they say, to a principle of utility, since they allege that they can _see better without them_! they laugh at white men, who preserve these appendages, calling them "ostrich-eyed,"--from a resemblance which they perceive between hairy brows and the stiff, hair-like feathers that bristle round the eyes of the rhea, or american ostrich,--a well-known denizen of the gran chaco. the costume of the chaco indian is one of exceeding simplicity; and in this again we observe a peculiar trait of his mind. instead of the tawdry and tinsel ornaments, in which most savages delight to array themselves, he is contented with a single strip of cloth, folded tightly around his loins. it is usually either a piece of white cotton, or of wool woven in a tri-colour of red, white, and blue, and of hues so brilliant, as to produce altogether a pretty effect. the wear of the women scarce differs from that of the men, and the covering of both, scant as it is, is neither inelegant nor immodest. it is well adapted to their mode of life, and to their climate, which is that of an eternal spring. when cold winds sweep over their grassy plains, they seek protection under the folds of a more ample covering, with which they are provided,--a cloak usually made of the soft fur of the "nutria," or south-american otter, or a robe of the beautiful spotted skin of the jaguar. they wear neither head-dress nor _chaussure_,--neither pendants from the nose, not the hideous lip ornaments seen among other tribes of south america; but many of them pierce the ears; and more especially the women, who split the delicate lobes, and insert into them spiral appendages of rolled palm-leaf, that hang dangling to their very shoulders. it will be observed, therefore, that among the chaco tribes the women disfigure themselves more than the men, and all, no doubt, in the interest of _fashion_. it will be seen that the simple dress we have described leaves the limbs and most part of the body bare. to the superficial observer it might be deemed an inelegant costume, and perhaps so it would be among europeans, or so-called "whites." the deformed figures of european people-deformed by ages of toil and monarchical serfdom--would ill bear exposure to the light, neither would the tripe-coloured skin, of which they are so commonly conceited. a very different impression is produced by the rich brunette hue,--bronze, if you will,--especially when, as in the case of the chaco indian, it covers a body of proper shape, with arms and limbs in symmetrical proportion. then, and then only, does costly clothing appear superfluous, and the eye at once admits that there is no fashion on earth equal to that of the human form itself. above all does it appear graceful on horseback, and almost universally in this attitude does the chaco indian exhibit it. scarce ever may we meet him afoot, but always on the back of his beautiful horse,--the two together presenting the aspect of the centaur. and probably in the resemblance he approaches nearer to the true ideal of the grecian myth, than any other horseman in the world; for the chaco indians differ not only from other "horse indians" in their mode of equitation, but also from every other equestrian people. the absurd high-peaked saddles of tartar and arab, with their gaudy trappings, are unknown to him,-unknown, too, the ridiculous paraphernalia, half-hiding the horse, in use among mexicans, south-american spaniards, and even the indians of other tribes,--despised by him the plated bits, the embroidered bridles, and the tinkling spurs, so tickling to the vanity of other new-world equestrians. the chaco horseman needs no such accessories to his elegance. saddle he has none, or only the slightest patch of jaguar-skin,--spurs and stirrups are alike absent. naked he sits upon his naked horse, the beautiful curvature of whose form is interrupted by no extraneous trappings,--even the thong that guides him scarce observable from its slightness. who then can deny his resemblance to the centaur? thus mounted, with no other saddle than that described, no bridle but a thin strip of raw hide looped around the lower jaw of his horse, he will gallop wildly over the plain, wheel in graceful curves to avoid the burrows of the _viscacha_, pass at full speed through the close-standing and often thorny trunks of the palms, or, if need be, stand erect upon the withers of his horse, like a "star rider" of the hippodrome. in this attitude he looks abroad for his enemies, or the game of which he may be in search; and, thus elevated above surrounding objects, he discovers the ostrich far off upon the plain, the large deer (_cervus campestris_), and the beautiful spotted roebucks that browse in countless herds upon the grass-covered savannas. the dwelling of the chaco indian is a tent, not covered with skins, but usually with mats woven from the epidermis of young leaves of a palm-tree. it is set up by two long uprights and a ridge-pole, over which the mat is suspended--very much after the fashion of the _tente d'abri_ used by zouave soldiers. his bed is a hammock, swung between the upright poles, or oftener, between two palm-trees growing near. he only seeks shelter in his tent when it rains, and he prevents its floor getting wet by digging a trench around the outside. he cares little for exposure to the sun; but his wife is more delicate, and usually carries over her head a large bunch of _rhea_ feathers, _a la parasol_, which protects her face from the hot scorching beams. the tent does not stand long in one situation. ample as is the supply which nature affords in the wilds of the chaco, it is not all poured out in any one place. this would be too much convenience, and would result in an evil consequence. the receiver of such a benefit would soon become indolent, from the absence of all necessity for exertion; and not only his health, but his moral nature, would suffer from such abundance. fortunately no such fate is likely to befall the indian of the chaco. the food upon which he subsists is derived from many varied sources, a few of which only are to be found in any one particular place, and each only at its own season of the year. for instance, upon the dry plains he pursues the _rhea_ and _viscacha_, the jaguar, puma, _and partridges_; in woods and marshy places the different species of wild hogs (peccaries). on the banks of rivers he encounters the tapir and capivara, and in their waters, fish, _utrias_, geese, and ducks. in the denser forest-covered tracts he must look for the various kinds of monkeys, which also constitute a portion of his food. when he would gather the legumes, of the _algarobias_--of several species--or collects the sugary sap of the _caraguatay_, he must visit the tracts where the _mimosae_ and _bromelias_ alone flourish; and then he employs much of his time in searching for the nests of wild bees, from the honey of which and the seeds of the _algarobia_ he distils a pleasant but highly intoxicating drink. to his credit, however, he uses this but sparingly, and only upon grand occasions of ceremony; how different from the bestial chicha-drinking revellers of the pampas! these numerous journeys, and the avocations connecting with them, hinder the chaco indian from falling into habits of idleness, and preserve his health to a longevity that is remarkable: so much so, that "to live as long as a chaco indian," has become a proverbial expression in the settlements of south america. the old styrian monk dobrizhoffer has chronicled the astounding facts, that among these people a man of eighty is reckoned to be in the prime of manhood; that a hundred years is accounted a common age; and that many of them are still hale and hearty at the age of one hundred and twenty! allowing for a little exaggeration in the statements of the monk, it is nevertheless certain that the indians of the gran chaco, partly owing to their fine climate, and partly to their mode of life and subsistence, enjoy health and strength to a very old age, and to a degree unknown in less-favoured regions of the world. of this there is ample and trustworthy testimony. the food of the chaco indian is of a simple character, and he makes no use either of salt or spices. he is usually the owner of a small herd of cattle and a few sheep, which he has obtained by plundering the neighbouring settlements of the spaniards. it is towards those of the south and west that he generally directs his hostile forays; for he is at peace with the riverine provinces,--brazilian, paraguayan, and correntine. in these excursions he travels long distances, crossing many a fordless stream and river, and taking along with him wife, children, tents, and utensils, in short, everything which he possesses. he fords the streams by swimming, using one hand to guide his horse. with this hand he can also propel himself, while in the other, he carries his long lance, on the top of which he poises any object he does not wish should be wetted. a "balza," called "pelota," made of bull's hide, and more like a square box than a boat, carries over the house utensils and the puppies, of which there are always a large number. the "precious baby" is also a passenger by the balza. the _pelota_ is propelled, or rather, pulled over, by means of a tiller-rope, held in the teeth of a strong swimmer, or tied to the tail of a horse; and thus the crossing is effected. returning with his plunder--with herds of homed cattle or flocks of sheep--not unfrequently with human captives, women and children, the crossing becomes more difficult; but he is certain to effect it without loss, and almost without danger of being overtaken in the pursuit. his freebooting habits should not be censured too gravely. many extenuating circumstances must be taken into consideration,--his wrongs and sanguinary persecutions. it must be remembered that the hostilities commenced on the opposite side; and with the indian the habit is not altogether indigenous, but rather the result of the principle of retaliation. he is near kindred to the _incas_,--in fact, some of the chaco tribes are remnants of the scattered peruvian race, and he still remembers the sanguinary slaughter of his ancestors by the pizarros and almagros. therefore, using the phraseology of the french tribunals, we may say there are "extenuating circumstances in his favour." one circumstance undoubtedly speaks trumpet-tongued for the chaco indian; and that is, he does not _torture_ his captives, even when _white_ men have fallen into his hands! as to the captive women and children, their treatment is rather gentle than otherwise; in fact, they are adopted into the tribe, and share, alike with the rest, the pleasures as well as the hardships of a savage life. when the chaco indian possesses horned cattle and sheep, he eats mutton and beef; but if these are wanting, he must resort to the chase. he captures deer and ostriches by running them down with his swift steed, and piercing them with his long spear; and occasionally he uses the _bolas_. for smaller game he employs the bow and arrow, and fish are also caught by shooting them with arrows. the chaco indian is the owner of a breed of dogs, and large packs of these animals may be seen around his camping-ground, or following the cavalcade in its removal from place to place. they are small creatures,--supposed to be derived from a european stock, but they are wonderfully prolific, the female often bringing forth twelve puppies at a birth. they burrow in the ground, and subsist on the offal of the camp. they are used in running down the spotted roebuck, in hunting the capivara, the great ant-bear, _viscachas_, and other small animals. the tapir is taken in traps, and also speared, when the opportunity offers. his flesh is relished by the chaco indian, but his hide is of more consequence, as from it bags, whips, and various other articles can be manufactured. the peccary of two species (_dicotyles torquatus_ and _collaris_) is also pursued by the dogs, and speared by the hunter while pausing to bay the yelping pack; and the great american tiger (jaguar) is killed in a like manner. the slaying of this fierce and powerful quadruped is one of the feats of the chaco hunter, and both its skin and flesh are articles of eager demand. the latter is particularly sought for; as by eating the flesh of so strong and courageous a creature the indian fancies his own strength and courage will be increased. when a jaguar is killed, its carcass becomes the common property of all; and each individual of the tribe must have his slice, or "griskin,"--however small the piece may be after such multiplied subdivision! for the same reason, the flesh of the wild boar is relished; also that of the ant-bear--one of the most courageous of animals,--and of the tapir, on account of its great strength. the bread of the chaco indian is derived, as before mentioned, from several species of mimosae, called indefinitely _algarobias_, and by the missionary monks known as "saint john's bread." palms of various kinds furnish edible nuts; and there are many trees in the chaco forests that produce luscious fruits. with these the indian varies his diet, and also with wild honey,--a most important article, for reasons already assigned. in the chaco there are stingless bees, of numerous distinct species,--a proof of the many blossoms which bloom as it were "unseen" in that flowery elysium. the honey of these bees--of some of the species in particular--is known to be of the finest and purest quality. in the spanish settlements it commands the highest price, and is very difficult to be obtained,--for the chaco indian is but little given to commerce, and only occasionally brings it to market. he has but few wants to satisfy, and cares not for the tinsel of the trader: hence it is that most of the honey he gathers is reserved for his own use. he searches for the bees' nest by observing the flight of the insect, as it passes back and forward over the wild parterre; and his keenness of sight--far surpassing that of a european--enables him to trace its movements in the air, and follow it to its hoard. he alleges that he could not accomplish this so well, were he encumbered with eyebrows and lashes, and offers this as one of his reasons for extracting these hirsute appendages. there may be something in what he says,--strange as it sounds to the ear of one who is _not_ a bee-hunter. he finds the nest at length,--sometimes in a hollow tree, sometimes upon a branch,-the latter kind of nest being a large mass, of a substance like blotting-paper, and hanging suspended from the twigs. sometimes he traces the insect to a subterranean dwelling; but it must be remarked that all these are different species of bees, that build their nests and construct the cells of their honeycombs each in its own favourite place, and according to its own fashion. the bee-hunter cares not how--so long as he can find the nest; though he would prefer being guided to one built upon a species of thick octagonal cactus, known as the habitat of the bee "tosimi." this preference is caused by the simple fact--that of all the honey in the chaco, that of the bee "tosimi" is the _sweetest_. it is to be regretted that, with his many virtues, and his fine opportunity of exercising them, the chaco indian will not consent to remain in peace and good-will with all men. it seems a necessity of his nature to have an occasional shy at some enemy, whether white or of his own complexion. but, indeed, it would be ridiculous to censure him for this, since it appears also to be a vice universal among mankind; for where is the tribe or nation, savage or civilised, who does not practise it, whenever it feels bold enough or strong enough to do so? the chaco indian is not alone in his disregard of of the sixth commandment,--not the only being on earth who too frequently goes forth to battle. he has two distinct kinds of enemies,--one of european, the other of his own race,--almost of his own kindred, you would say. but it must be remembered that there are several distinct tribes dwelling in the chaco; who, although presenting a certain similitude, are in many respects widely dissimilar; and, so far from forming one nation, or living in harmonious alliance with each other, are more frequently engaged in the most deadly hostilities. their wars are all conducted on horseback,-all cavalry skirmishes,--the chaco indian disdaining to touch the ground with his foot. dismounted he would feel himself vanquished,--as much out of his element as a fish, out of water! his war weapons are of a primitive kind; they are the bow and lance, and a species of club, known in spanish phraseology as the "macana." this last weapon is also found in the hands of several of the amazonian tribes, though differing slightly in its construction. the "macana" of the chaco indian is a short, stout piece of heavy iron-wood,--usually a species known as the _quebracha_, or "axe-breaker," which grows plentifully throughout the paraguayan countries. numerous species are termed "quebracha" in spanish-american countries, as there are numerous "iron-woods." that of paraguay, like most others that have obtained this name, is a species of ebony-wood, or lignum-vitae,--in short, a true _guaiacum_. the wood is hard, solid, and heavy almost as metal; and therefore just the very stuff for a war-club. the macana of the chaco indian is short,--not much over two feet in length, and is used both for striking in the hand and throwing to a distance. it is thicker, and of course heavier, at both extremities; and the mode of grasping it is round the narrow part in the middle. the indian youths, while training for war, practise throwing the macana, as other people play at skittles or quoits. the _lazo_ and _bolas_ are both in the hands of the chaco tribes, but these contrivances are used sparingly, and more for hunting than war. they rarely trouble themselves with them on a real war expedition. their chief weapons against an enemy are their long lances,--for these are far the most effective arms for a man mounted on horseback. those of the chaco indian are of enormous length, their shafts being often fifteen feet from butt to barb. they use them also when mounting on horseback, in a fashion peculiar to themselves. they mount by the right side, contrary to our european mode; nor is there the slightest resemblance in any other respect between the two fashions of getting into the saddle. with the chaco indian there is no putting toes into stirrups,--no tugging at the poor steed's withers,--no clinging or climbing into the seat. he places the butt of his lance upon the ground, grasps it a little above his head with the right hand, and then raising his lithe body with an elastic spring, he drops like a cat upon the spine of his well-trained steed. a word,--a touch of his knee, or other well-understood signal,--and the animal is off like an arrow. when the chaco indian goes to war against the whites, his arms are those already described. he is not yet initiated into the use of guns and gunpowder, though he often experiences their deadly effects. indeed, the wonder is that he could have maintained his independence so long, with such weapons opposed to him. gunpowder has often given cowards the victory over brave men; but the chaco indian, even without gunpowder, has managed somehow or other to preserve his freedom. when he makes an expedition against the white settlements, he carries no shield or other defensive armour. he did so at one period of his history; but experience has taught him that these contrivances are of little use against leaden bullets; and he has thrown them away, taking them up again, however, when he goes to war with enemies of his own kind. in attacking a settlement or village of the whites, one of his favourite strategic plans is to set the houses on fire; and in this he very often succeeds,--almost certainly when the thatch chances to be dry. his plan is to project an arrow with a piece of blazing cotton fastened near the head. for this purpose he uses the strongest kind of bow, and lying upon his back, bends it with his feet. by this means a much longer range is obtained, and the aim is of little consequence, so long as the arrow falls upon the roof a house. on going to war with a hostile tribe of his own kind and colour, he equips himself in a manner altogether different his face is then painted most frightfully, and in the most hideous designs that his imagination can suggest, while his body is almost entirely covered by a complete suit of mail. the thick hide of the tapir furnishes him with the materials for helmet, cuirass, cuisses, greaves, everything,--and underneath is a lining of jaguar-skin. thus accoutred he is in little danger from the arrows of the enemy, though he is also sadly encumbered in the management of his horse; and were he upon a plundering expedition against the whites, such an encumbrance would certainly bring him to grief. he knows that very well, and therefore he never goes in such guise upon any foray that is directed towards the settlements. the chaco indian has now been at peace with his eastern neighbours--both spaniards and portuguese--for a considerable length of time; but he still keeps up hostility with the settlements on the south,--those of cordova and san luis,--and often returns from these wretched provinces laden with booty. if he should chance to bring away anything that is of no use to him, or that may appear superfluous in his savage home,--a harp or guitar, a piece of costly furniture, or even a handsome horse,-he is not required to throw it away: he knows that he can find purchasers on the other side of the river,--among the spanish merchants of corrientes or paraguay, who are ready at any time to become the receivers of the property stolen from their kindred of the south! such queer three-cornered dealings are also carried on in the northern countries of spanish america,--in the provinces of chihuahua, new leon, and new mexico. they are there called "cosas de mexico." it appears they are equally "cosas de paraguay." chapter seven. the feegees, or man-eaters. have i a reader who has not heard of the "king of the cannibal islands?" i think i may take it for granted that there is not one in my large circle of boy-readers who has not heard of that royal anthropophagist, that "mighty king" who,- "in one hut, had fifty wives as black as _sut_, and fifty of a double smut- that king of the cannibal islands." and yet, strange as it may appear, the old song was no exaggeration-neither as regards the number of his wives, nor any other particular relating to king "musty-fusty-shang." on the contrary, it presents a picture of the life and habits of his polygamous majesty that is, alas! too ludicrously like the truth. though the king of the cannibal islands has been long known by reputation, people never had any very definite idea in what quarter of the world his majesty's dominions lay. being, as the name implies, an island-kingdom, it was to be looked for of course, in some part of the ocean; and the pacific ocean or great south sea was generally regarded as that in which it was situated; but whether it was the tonga islands, or the marquesas, or the loo-choos, or the soo-loos--or some other group, that was entitled to the distinction of being the man-eating community, with the man-eating king at their head--was not very distinctly ascertained up to a recent period. on this head there is uncertainty no longer. though in several groups of south-sea islands the horrible propensity is known to exist, yet the man-eaters, _par excellence_, the real _bona-fide_ followers of the habit, are the _feegees_. beyond doubt these are the greatest cannibals in all creation, their islands the true "cannibal islands," and their king no other than "musty-fusty-shang" himself. alas! the subject is too serious to jest upon, and it is not without pain that we employ our pen upon it. the truth must needs be told; and there is no reason why the world should not know how desperately wicked men may become under the influence of a despotism that leaves the masses in the power of the irresponsible few, with no law, either moral or physical, to restrain their unbridled passions. you will find the feegee islands, in the pacific ocean, in the latitude of 18 degrees south. this parallel passes nearly through the centre of the group. their longitude is remarkable: it is the complement of the meridian of greenwich--the line 180 degrees. therefore, when it is noon in london, it is midnight among the feegees. take the intersection of these two lines, 18 degrees latitude and 180 degrees longitude as a centre; describe an imaginary circle, with a diameter of 300 miles; its circumference, with the slight exception of a small outlying group, will enclose, in a "ring fence," as it were, the whole feegee archipelago. the group numbers, in all, no fewer than 225 islands and islets, of which between 80 and 90 are at present inhabited--the whole population being not much under 200,000. the estimates of writers differ widely on this point; some state 150,000--others, more than double this amount. there is reason to believe that 150,000 is too low. say, then, 200,000; since the old adage: "in medias res," is generally true. only two of the islands are large,--"viti," and "vanua." viti is 90 miles long, by 50 in breadth, and vanua 100 by 25. some are what are known as "coral islands;" others are "volcanic," presenting all varieties of mountain aspect, rugged and sublime. a few of the mountain-peaks attain the elevation of 5,000 feet above sea-level, and every form is known--table-topped, dome-shaped, needle, and conical. in fact, no group in the pacific affords so many varieties of form and aspect, as are to be observed in the feegee archipelago. in sailing through these islands, the most lovely landscapes open out before the eye, the most picturesque groupings of rocks, ridges, and mountain-peaks, ravines filled with luxuriant vegetation, valleys covered with soft verdure, so divinely fair as to appear the abode of angelic beings. "so beautiful was their aspect," writes one who visited them, "that i could scarcely bring my mind to the realising sense of the well-known fact, that they were the abode of a savage, ferocious, and treacherous race of cannibals." such, alas! is the fact, well-known, as the writer observes. perhaps to no part of the world has nature been more bountiful than to the feegee islands. she has here poured out her favours in very profusion; and the _cornucopia_ might be regarded as an emblem of the land. the richest products of a tropic vegetation flourish in an abundance elsewhere unknown, and the growth of valuable articles of food is almost spontaneous. many kinds are really of spontaneous production; and those under cultivation are almost endless in numbers and variety. yams grow to the length of six feet, weighing one hundred pounds each! and several varieties are cultivated. the sweet potato reaches the weight of five or six pounds, and the "taro" (_arum esculentum_) also produces a root of enormous size, which forms the staple article of the feegeean's food. still another great tuber, weighing twenty or thirty pounds, and used as a liquorice, is the produce of the "massawe," or ti-tree (_dracaena terminalis_); and the root of the _piper methisticum_ often attains the weight of one hundred and forty pounds! this last is possessed of highly narcotic properties; and is the material universally used in the distillation, or rather brewing, of the native drink called "yaqona"--the "kava" of the south-sea voyagers. breadfruit grows in abundance: there being no less than nine varieties of this celebrated tree upon the different islands of the group, each producing a distinct kind of fruit; and what is equally remarkable, of the _musaceae_--the plantain and banana--there are in the feegee isles thirty different kinds, either of spontaneous growth, or cultivated! all these are well distinguished from one another, and bear distinct appellations. three kinds of cocoa-palm add to the extraordinary variety of vegetable food, as well as to the picturesqueness of the scenery; but there is no lack of lovely forms in the vegetation, where the beautiful ti-tree grows,-where the fern and the screw-pines flourish,--where plantains and bananas unfold their broad bright leaves to the sun; where _arums_ spread their huge fronds mingling with the thick succulent blades of the bromelia, and where pawpaws, shaddocks, orange and lime-trees exhibit every hue of foliage, from deep-green to the most brilliant golden. fruits of a hundred species are grown in the greatest plenty; the orange and the papuan apple, the shaddock and lemon; in short, almost every species of fruit that will flourish in a tropical clime. in addition, many indigenous and valuable kinds, both of roots and fruits, are peculiar to the feegee group, yet unknown and uncultivated in any other part of the world. even the very cloth of the country--and a beautiful fabric it makes--is the product of an indigenous tree, the "malo" or paper-mulberry (_brousonetia papyrifera_), the "tapa" of voyagers. not only the material for dresses, but the tapestry for the adornment of their temples, the curtains and hangings of their houses, are all obtained from this valuable tree. we have not space for a more detailed account of the productions of these isles. it would fill a volume to describe with any degree of minuteness the various genera and species of its plants alone. enough has been said to show how bountiful, or rather how prodigal, nature has been to the islands of the feegeean archipelago. of the animal kingdom there is not much to be said. of quadrupeds there is the usual paucity of species that is noticed everywhere throughout the polynesian islands. dogs and pigs are kept; the latter in considerable numbers, as the flesh forms an important article of food; but they are not indigenous to the feegee group, though the period of their introduction is unknown. two or three small rodents are the only quadrupeds yet known to be true natives of the soil. reptiles are alike scarce in species,--though the turtle is common upon the coasts, and its fishery forms the regular occupation of a particular class of the inhabitants. the species of birds are more numerous, and there are parrots, peculiar to the islands, of rich and beautiful plumage. but we are not allowed to dwell upon these subjects. interesting as may be the zoology and botany of the feegeean archipelago, both sink into insignificance when brought into comparison with its ethnology,--the natural history of its human inhabitants;--a subject of deep, but alas! of a terribly painful interest. by inquiry into the condition and character of these people, we shall see how little they have deserved the favours which nature has so bounteously bestowed upon them. in the portrait of the feegeean you will expect something frightfully hideous,--knowing, as you already do, that he is an eater of human flesh,--a man of gigantic stature, swarthy skin, bloodshot eyes, gaunt, bony jaws, and terrific aspect. you will expect this man to be described as being naked,--or only with the skin of a wild beast upon his shoulders,--building no house, manufacturing no household or other utensils, and armed with a huge knotted club, which he is ever ready to use:--a man who dwells in a cavern, sleeps indifferently in the open air or under the shelter of a bush; in short, a true savage. that is the sort of creature you expect me to describe, and i confess that just such a physical aspect--just such a condition of personal hideousness--would be exactly in keeping with the moral deformity of the feegeean. you would furthermore expect this savage to be almost devoid of intellectual power,--altogether wanting in moral sense,--without knowledge of right and wrong,--without knowledge of any kind,--without ideas. it seems but natural you should look for such characteristics in a _cannibal_. the portrait i am about to paint will disappoint you. i do not regret it, since it enables me to bring forward another testimony that man in his original nature is not a being of such desperate wickedness. that simple and primitive state, which men glibly call _savage_, is _not_ the condition favourable to cannibalism. i know that it is to such people that the habit is usually ascribed, but quite erroneously. the andaman islander has been blamed with it simply becauses he chances to go naked, and looks, as he is, hungry and emaciated. the charge is proved false. the bushman of south africa has enjoyed a similar reputation. it also turns out to be a libel. the carib long lived under the imputation, simply because he presented a fierce front to the spanish tyrant, who would have enslaved him; and we have heard the same stigma cast upon a dozen other tribes, the _lowest savages_ being usually selected; in other words, those whose condition appeared the most wretched. in such cases the accusation has ever been found, upon investigation, to be erroneous. in the most primitive state in which man appears upon the earth, he is either without social organisation altogether, or if any do exist, it is either patriarchal of republican. neither of these conditions is favourable to the development of vice,--much less the most horrible of all vices. it will not do to quote the character of the bushman, or certain other of the low tribes, to refute this statement. these are not men in their primitive state ascending upward, but a condition altogether the reverse. they are the decaying remnants of some corrupt civilisation, sinking back into the dust out of which they were created. no--and i am happy to say it--man, as he originally came from the hands of the creator, has no such horrid propensity as cannibalism. in his primitive state he has never been known to practise it,--except when the motives have been such as have equally tempted men professing the highest civilisation,--but this cannot be considered cannibalism. where that exists in its true unmitigated form,--and unhappily it does so,-the early stages of social organisation must have been passed; the republican and patriarchal forms must both have given place to the absolute and monarchical. this condition of things is absolutely necessary, before man can obtain sufficient power to prey upon his fellow-man to the extent of eating him. there can be no "cannibal" without a "king." so far from the feegeean cannibals being _savages_, according to the ordinary acceptation of the term, they are in reality the very reverse. if we adhere to the usual meaning of the word civilisation, understanding by it a people possessing an intelligent knowledge of arts, living in well-built houses, fabricating fine goods, tilling their lands in a scientific and successful manner, practising the little politenesses and accomplishments of social life,--if these be the _criteria_ of civilisation, then it is no more than the truth to say that the standard possessed by the feegee islanders is incomparably above that of the lower orders of most european nations. it is startling to reflect--startling as sad--that a people possessed of such intellectual power, and who have ever exercised it to a wonderful extent, in arts, manufactures, and even in the accomplishing of their own persons, should at the same time exhibit moral traits of such an opposite character. an atrocious cruelty,--an instinct for oppression, brutal and ferocious,--a heart pitiless as that of the fiend himself,--a hand ever ready to strike the murderous blow, even though the victim be a brother,--lips that lie in every word they speak,--a tongue ever bent on barbaric boasting,--a bosom that beats only with sentiments of treachery and abject cowardice,--these are the revolting characteristics of the feegeean. dark as is his skin, his soul is many shades darker. it is time, however, to descend to a more particular delineation of this man-eating monster; and first, we shall give a description of his personal appearance. the feegeeans are above the average height of europeans or white men: men of six feet are common among them, though few reach the height of six feet six. corpulent persons are not common, though large and muscular men abound. their figure corresponds more nearly to that of the white man than any other race known. the proportions of their limbs resemble those of northern europeans, though some are narrower across the loins. their chests are broad and sinewy, and their stout limbs and short, well-set necks are conspicuous characters. the outline of the face is a good oval; the mouth large, with white teeth regularly arranged--ah! those horrid teeth!--the nose is well-shaped, with full nostrils; yet quite distinct, as are the lips also, from the type of the african negro. indeed, with the exception of their colour, they bear very little resemblance to the negro,--that is, the thick-lipped, flat-nosed negro of our fancy; for there are negro tribes in africa whose features are as fine as those of the feegeeans, or even as our own. in colour of skin the feegeean is nearly, if not quite, as dark as the negro; but it may be remarked that there are different shades, as there are also among pure ethiopians. in the feegee group there are many men of mulatto colour, but these are not of the original feegee stock. they are either a mixed offspring with the tonga islander, or pure-bred tonga islanders themselves who for the past two hundred years have been insinuating themselves into the social compact of the feegeeans. these light-coloured people are mostly found on the eastern or windward side of the feegee group,--that is, the side towards tonga itself,--and the trade-winds will account for their immigration, which was at first purely accidental. they at present play a conspicuous part in the affairs of the feegeeans, being in favour with the kings and great chiefs, partly on account of their being better sailors than the native feegeeans, and partly on account of other services which these tyrants require them to perform. in some arts the tongans are superior to the feegeeans, but not in all. in pottery, wood-carving, making of mats or baskets, and the manufacture of the tapa cloth, the feegeeans stand unrivalled over all the pacific ocean. we need say no more of the tongans here; they are elsewhere described. those dwelling in feegee are not all fixed there for life. some are so, and these are called tonga-feegeeans; the others are only visitors, giving their services temporarily to the feegeean chiefs, or occupied in ship-building,--in constructing those great war canoes that have been the astonishment of south-sea voyagers, and which feegee sends forth from her dockyards in the greatest perfection. these, when finished by the tongan strangers, are used to carry them back to their own islands, that lie about three hundred miles to the windward (southeast). but to continue the portrait of the feegeean. we have touched almost every part of it except the hair; but this requires a most elaborate limning, such as the owner himself gives it. in its natural state the head of the feegeean is covered by a mass of black hair, long, frizzled, and bushy, sometimes encroaching on the forehead, and joined by whiskers to a thick, round, or pointed beard, to which moustaches are often added. black is, of course, the natural colour of the hair, but it is not always worn of this hue. other colours are thought more becoming; and the hair, both of the men and women, is dyed in a variety of ways, lime burning it to a reddish or whitey-brown shade. a turmeric-yellow, or even a vermilion-red are not uncommon colours; but all these keep varying, according to the change of fashions at court! commodore wilkes, who has given a good deal of his time to an exploration of the feegee islands, states that the feegee hair, in its natural condition, is straight, and not "frizzled," as described above-he says that the frizzling is the work of the barber; but the commodore is altogether mistaken in this idea. thousands of feegeeans, whose hair was never touched by a barber, nor dressed even by themselves, exhibit this peculiarity. we regret to add that this is only one of a thousand erroneous statements which the commodore has made during his gigantic exploration. he may have been excellent at his own speciality of making soundings and laying down charts; but on all matters pertaining to natural history or ethnology, the worthy commodore appears to have been purblind, and, indeed, his extensive staff of naturalists of every kind have produced far less than might have been expected from such excellent opportunities as they enjoyed. the observation of the commodore will not stand the test of time, and cannot be depended upon as safe guides, excepting in those cases where he was an actual eye-witness. about his truthful intentions there can be no doubt whatever. of one very peculiar performance among the feegees he appears to have had actual demonstration, and as he has described this with sufficient minuteness, we shall copy his account; though, after what we have said, we should apologise largely for the liberty. the performance referred to is that of "barberising" a barbarian monarch, and may be taken as a proof of high civilisation among the feegees. it will be seen that, with the exception of the tabooed fingers, there is not much difference between a barber of bond street and an artist of like calling in the cannibal islands. "the chiefs in particular," writes commodore wilkes, "pay great attention to the dressing of their heads, and for this purpose all of them have barbers, whose sole occupation is the care of their masters' heads. these barbers are called _a-vu-ni-ulu_. they are attached to the household of the chiefs in numbers of from two to a dozen. the duty is held to be of so sacred a nature, that their hands are tabooed from all other employment, and they are not even permitted to feed themselves. to dress the head of a chief requires several hours. the hair is made to spread out from the head, on every side, to a distance that is often eight inches. the beard, which is also carefully nursed, often reaches the breast, and when a feegeean has these important parts of his person well dressed, he exhibits a degree of conceit that is not a little amusing. "in the process of dressing the hair it is well anointed with oil, mixed with a carbonaceous black, until it is completely saturated. the barber then takes the hairpin, which is a long and slender rod, made of tortoise-shell or bone, and proceeds to twitch almost every separate hair. this causes it to frizzle and stand erect. the bush of hair is then trimmed smooth by singeing it, until it has the appearance of an immense wig. when this has been finished, a piece of tapa, so fine as to resemble tissue-paper, is wound in light folds around it, to protect the hair from the dew or dust. this covering, which has the look of a turban, is called _sala_, and none but the chiefs are allowed to wear it; any attempt to assume this head-dress by a kai-si, or common person, would be immediately punished with death. the sala, when taken proper care of, will last three weeks or a month, and the hair is not dressed except when it is removed; but the high chiefs and dandies seldom allow a day to pass without changing the sala and having the hair put in order." with this account, we conclude our description of the feegeean's person. his costume is of the simplest kind, and easily described. with the men it is merely a strip of "tapa" or "malo" cloth passed several times round the waist, and the ends left to hang down in front. the length of the hanging ends determines the rank of the wearer, and only in the case of kings or great chiefs are they allowed to touch the ground. a turban of the finest tapa cloth among the great mop of hair is another badge of rank, worn only by kings and chiefs; and this head-dress, which adds greatly to the dignified appearance of the wearer, is not always coiffed in the same fashion, but each chief adapts it to his own or the prevailing taste of the court. the dress of the women is a mere waist-belt, with a fringe from six to ten inches in length. it is worn longer after they have become wives, sometimes reaching near the knee, and forming a very picturesque garment. it is called the "liku," and many of them are manufactured with surprising skill and neatness, the material being obtained from various climbing plants of the forest. under the "liku" the women are tattooed, and there only. their men, on the contrary, do not undergo the tattoo; but on grand occasions paint their faces and bodies in the most fanciful colours and patterns. the kings and some chiefs suspend from their necks shell ornaments-often as large as a dining-plate--that down upon the breast. some, instead of this, wear a necklace of whales' teeth, carved to resemble claws, and bearing a very close resemblance to the necklaces of the prairie indians, made of the claws of the grizzly bear. another kind of necklace--perhaps more appropriate to the feegee--is a string of human teeth; and this kind is not unfrequently worn by these ferocious dandies. it must not be supposed that the scantiness of the feegeean costume arises from poverty or stinginess on the part of the wearer. nothing of the kind. it is simply because such is the fashion of the time. were it otherwise, he could easily supply the materials, but he does not wish it otherwise. his climate is an eternal summer, and he has no need to encumber his body with extraneous clothing. with the exception of the turban upon his head, his king is as naked as himself. you may suppose that the feegeeans have but little notions of modesty; but, strange as it may appear, this is in reality not one of their failings. they regard the "malo" and "liku" as the most modest of garments; and a man or woman seen in the streets without these scanty coverings would be in danger of being clubbed to death! it must be acknowledged that they are not _altogether_ depraved--for in this respect they present the most astounding anomaly. certain virtues are ascribed to them, and as i have painted only the dark side of their character, it is but fair to give the other. indeed, it is a pleasure to do this--though there is not enough of the favourable to make any great alteration in the picture. the whole character is so well described by one of the most acute observers who has yet visited the south seas--the wesleyan missionary williams--that we borrow the description. "the aspect of the feegeean," says mr williams, "with reference to his mental character, so far from supporting the decision which would thrust him almost out of mankind, presents many points of great interest, showing that, if an ordinary amount of attention were bestowed on him, he would take no mean rank in the human family, to which, hitherto, he has been a disgrace. dull, barren stupidity forms no part of his character. his feelings are acute, but not lasting; his emotions easily roused, but transient; he can love truly, and hate deeply; he can sympathise with thorough sincerity, and feign with consummate skill; his fidelity and loyalty are strong and enduring, while his revenge never dies, but waits to avail itself of circumstances, or of the blackest treachery, to accomplish its purpose. his senses are keen, and so well employed, that he often excels the white man in ordinary things. tact has been called `ready cash,' and of this the native of feegee has a full share, enabling him to surmount at once many difficulties, and accomplish many tasks, that would have `fixed' an englishman. tools, cord, or packing materials, he finds directly, where the white man would be at a loss for either; and nature seems to him but a general store for his use, where the article he wants is always within reach. "in social diplomacy the feegeean is very cautious and clever. that he ever paid a visit merely _en passant_, is hard to be believed. if no request leaves his lips, he has brought the desire, and only waits for a good chance to present it now, or prepare the way for its favourable reception at some other time. his face and voice are all pleasantness; and he has the rare skill of finding out just the subject on which you most like to talk, or sees at once whether you desire silence. barely will he fail to read your countenance; and the case must be urgent indeed which obliges him to ask a favour when he sees a frown. the more important he feels his business the more earnestly he protests that he has none at all; and the subject uppermost in his thoughts comes last to his lips, or is not even named; for he will make a second, or even a third visit, rather than risk a failure through precipitancy. he seems to read other men by intuition, especially where selfishness or lust are prominent traits. if it serves his purpose, he will study difficult and peculiar characters, reserving the results for future use; if afterwards he wish to please them, he will know how, and if to annoy them, it will be done most exactly. "his sense of hearing is acute, and by a stroke of his nail he judges the ripeness of fruits, or soundness of various substances." from what source the feegeean has sprung is purely a matter of conjecture. he has no history,--not even a tradition of when his ancestors first peopled the archipelago in which we now find him. of his race we have not a much clearer knowledge. speculation places him in the same family as the "papuan negro," and he has some points of resemblance to this race, in the colour and frizzled hair; but there is as much difference between the wretched native of west australia and the finely-developed feegeean as there is between the stunted laplander and the stalwart norwegian; nor is the coarse rough skin of the true papuan to be recognised in the smooth, glossy epidermis of the feegee islander. this, however, may be the result of better living; and certainly among the mountain-tribes of the feegees, who lead lives of greater privation and hardship, the approach to the papuan appearance is observable. it is hardly necessary to add that the feegeean is of a race quite distinct from that known as the polynesian or south-sea islander. this last is different not only in form, complexion, and language, but also in many important mental characteristics. it is to this race the tongans belong, and its peculiarities will be sketched in treating of that people. were we to enter upon a minute description of the manners and customs of the feegees,--of their mode of house and canoe building,--of their arts and manufactures, for they possess both,--of their implements of agriculture and domestic use,--of their weapons of war,--their ceremonies of religion and court etiquette,--our task would require more space than is here allotted to us: it would in fact be as much as to describe the complete social economy of a civilised nation; and a whole volume would scarce suffice to contain such a description. in a sketch like the present, the account of these people requires to be given in the most condensed and synoptical form, and only those points can be touched upon that may appear of the greatest interest. it must be remembered that the civilisation of the feegees--of course, i allude to their proficiency in the industrial arts--is entirely an indigenous growth. they have borrowed ideas from the tongans,--as the tongans have also from them,--but both are native productions of the south sea, and not derived from any of the so-called great _centres_ of civilisation. such as have sprung from these sources are of modern date, and make but a small feature in the panorama of feegeean life. the houses they build are substantial, and suitable to their necessities. we cannot stay to note the architecture minutely. the private dwellings are usually about twenty-five feet long by fifteen in breadth, the interior forming one room, but with a sort of elevated divan at the end, sometimes screened with beautiful "tapa" curtains, and serving as the dormitory. the ground-plan of the house is that of an oblong square,--or, to speak more properly, a parallelogram. the walls are constructed of timber,-being straight posts of cocoa-palm, tree-fern, bamboo, or breadfruit,-the spaces between closely warped or otherwise filled in with reeds of cane or _calamus_. the thatch is of the leaves of the wild or cultivated sugar-cane,--sometimes of a _pandanus_,--thickly laid on, especially near the eaves, where it is carefully cropped, exposing an edge of from one to two feet in thickness. the roof has four faces,-that is, it is a "hip roof." it is made with a very steep pitch, and comes down low, projecting fer over the heads of the upright timbers. this gives a sort of shaded veranda all around the house, and throws the rain quite clear of the walls. the ridge-pole is a peculiar feature; it is fastened to the ridge of the thatch by strong twisted ropes, that give it an ornamental appearance; and its carved ends project at both gables, or rather, over the "hip roofs," to the length of a foot, or more; it is further ornamented by white shells, those of the _cyprea ovula_ being most used for the purpose. the feegee house presents altogether a picturesque and not inelegant appearance. the worst feature is the low door. there are usually two of them, neither in each house being over three feet in height. the feegee assigns no reason why his door is made so low; but as he is frequently in expectation of a visitor, with a murderous bludgeon in his grasp, it is possible this may have something to do with his making the entrance so difficult. the houses of the chiefs, and the great council-house, or temple,-called the "bure,"--are built precisely in the same style; only that both are larger, and the doors, walls, and ridge-poles more elaborately ornamented. the fashionable style of decoration is a plaiting of cocoa-fibre, or "sinnet," which is worked and woven around the posts in regular figures of "relievo." the house described is not universal throughout all the group. there are many "orders" of architecture, and that prevailing in the windward islands is different from the style of the leeward, and altogether of a better kind. different districts have different forms. in one you may see a village looking like an assemblage of wicker baskets, while in another you might fancy it a collection of rustic arbours. a third seems a collection oblong hayricks, with holes in their sides; while, in a fourth these ricks are conical. it will be seen that, with this variety in housebuilding, it would be a tedious task to illustrate the complete architecture of feegeeans. even master kuskin himself would surrender it up in despair. equally tedious would it be to describe the various implements or utensils which a feegee house contains. the furniture is simple enough. there are neither chairs, tables, nor bedsteads. the bed is a beautiful mat spread on the dais, or divan; and in the houses of the rich the floors are covered with a similar carpet. these mats are of the finest texture, far superior to those made elsewhere. the materials used are the _hibiscus tiliaceus, pandanus odoratissimus_, and a species of rush. they are in great abundance in every house,--even the poorest person having his mat to sit or lie upon; and it is they that serve for the broad-spreading sails of the gigantic canoes. in addition to the mats, plenty of tapa cloth may be seen, and baskets of every shape and size,--the wicker being obtained from the rattan (_flagellaria_), and other sources. one piece of furniture deserves especial mention,--this is the pillow upon which the feegee lord lays his head when he goes to sleep. it presents but little claim to the appellation of a _downy_ pillow; since it is a mere cylinder of hard polished wood, with short arched pedestals to it, to keep it firmly in its place. its object is to keep the great frizzled mop from being tossed or disarranged, during the hours of repose; and feegeean vanity enables the owner of the mop to endure this flinty bolster with the most uncomplaining equanimity. if he were possessed of the slightest spark of conscience, even this would be soft, compared with any pillow upon which he might rest his guilty head. in addition to the baskets, other vessels meet the eye. these are of pottery, as varied in shape and size as they are in kind. there are pots and pans, bowls, dishes, cups and saucers, jars and bottles,--many of them of rare and curious designs,--some red, some ornamented with a glaze obtained from the gum of the _kauri_ pine,--for this tree is also an indigenous production of the feegee islands. though no potter's wheel is known to the feegees, the proportions of their vessels are as just and true, and their polish as complete, as if stafford had produced them. there are cooking-pots to be seen of immense size. these are jars formed with mouths wide enough to admit the largest joint. i dare not mention the kind of joint that is frequently cooked in those great caldrons. ugh! the horrid pots! their implements are equally varied and numerous,--some for manufacturing purposes, and others for agriculture. the latter are of the simplest kind. the feegee plough is merely a pointed stick inserted deeply into the ground, and kept moving about till a lump of the soil is broken upward. this is crushed into mould, first by a light club, and afterwards pulverised with the fingers. the process is slow, but fast enough for the feegeean, whose farm is only a garden. he requires no plough, neither bullocks nor horses. with taro-roots and sweet potatoes that weigh ten pounds each, yams and yaqonas over one hundred, and plantains producing bunches of a hundred and fifty fruits to the single head, why need he trouble himself by breaking up more surface? his single acre yields him as much vegetable wealth as fifty would to an english farmer! it is not to be supposed that he has it all to himself; no, nor half of it either; nor yet the fifth part of it. at least four fifths of his sweat has to be expended in tax or tithe; and this brings us to the form of his government. we shall not dwell long upon this subject. suffice it to say that the great body of the people are in a condition of abject serfdom,--worse than slavery itself. they own nothing that they can call their own,--not their wives,--not their daughters,--not even their lives! all these may be taken from them at any hour. there is no law against despoiling them,--no check upon the will and pleasure of their chiefs or superiors; and, as these constitute a numerous body, the poor _canaille_ have no end of ruffian despoilers. it is an everyday act for a chief to rob, or _club to death_, one of the common people! and no unfrequent occurrence to be himself clubbed to death by his superior, the king! of these _kings_ there are eight in feegee,--not one, as the old song has it; but the words of the ballad will apply to each of them with sufficient appropriateness. any one of them will answer to the character of "musty-fusty-shang?" these kings have their residences on various islands, and the different parts of the group are distributed somewhat irregularly under their rule. some islands, or parts of islands, are only tributary to them; others connected by a sort of deferential alliance; and there are communities quite independent, and living under the arbitrary sway of their own chieftains. the kings are not all of equal power or importance; but in this respect there have been many changes, even during the feegeean historical period,--which extends back only to the beginning of the present century. sometimes one is the most influential, sometimes another; and in most cases the pre-eminence is obtained by him who possesses the greatest amount of truculence and treachery. he who is most successful in murdering his rivals, and ridding himself of opposition, by the simple application of the club, usually succeeds in becoming for the time head "king of the cannibal islands." i do not mean that he reigns over the whole archipelago. no king has yet succeeded in uniting all the islands under one government. he only gets so far as to be feared everywhere, and to have tributary presents, and all manner of debasing compliments offered to him. these kings have all their courts and court etiquette, just as their "royal brothers" elsewhere; and the ceremonials observed are quite as complicated and degrading to the dignity of man. the punishment for neglecting their observance is rather more severe in feegee than elsewhere. for a decided or wilful non-compliance, the skull of the delinquent is frequently crushed in by the club of his majesty himself,--even in presence of a full "drawing-room." lesser or accidental mistakes, or even the exhibition of an ungraceful _gaucherie_, are punished by the loss of a finger: the consequence of which is, that in feegee there are many fingers missing! indeed, a complete set is rather the exception than the rule. if a king or great chief should chance to miss his foot and slip down, it is the true _ton_ for all those who are near or around him to fall likewise,--the crowd coming down, literally like a "thousand of bricks!" i might detail a thousand customs to show how far the dignity of the human form is debased and disgraced upon feegee soil; but the subject could be well illustrated nearer home. flunkeyism is a fashion unfortunately not confined to the feegeean archipelago; and though the forms in which it exhibits itself there may be different, the sentiment is still the same. it must ever appear where men are politically unequal,--wherever there is a class possessed of hereditary privileges. i come to the last,--the darkest feature in the feegeean character,--the horrid crime and custom of cannibalism. i could paint a picture, and fill up the details with the testimony of scores of eyewitnesses,--a picture that would cause your heart to weep. it is too horrid to be given here. my pen declines the office; and, therefore, i must leave the painful story untold. chapter eight. the tongans, or friendly islanders. it is a pleasure to pass out of the company of the ferocious feegees into that of another people, which, though near neighbours of the former, are different from them in almost every respect,--i mean the tongans, or friendly islanders. this appellation scarce requires to be explained. every one knows that it was bestowed upon them by the celebrated navigator cook,--who although not the actual discoverer of the tonga group, was the first who thoroughly explored these islands, and gave any reliable account of them to the civilised world. tasman, who might be termed the "dutch captain cook," is allowed to be their discoverer, so long ago as 1643; though there is reason to believe that some of the spanish explorers from peru may have touched at these islands before his time. tasman, however, has fixed the record of his visit, and is therefore entitled to the credit of the discovery,--as he is also to that of australia, new zealand, van diemen's land, and other now well-known islands of the south-western pacific. tasman bestowed upon three of the tonga group the names--amsterdam, rotterdam, and middleburgh; but, fortunately, geographers have acted in this matter with better taste than is their wont; and tasman's dutch national titles have fallen into disuse,--while the true native names of the islands have been restored to the map. this is what should be done with other pacific islands as well; for it is difficult to conceive anything in worse taste than such titles as the caroline and loyalty isles, prince william's land, king george's island, and the ten thousand albert and victoria lands which the genius of flattery, or rather flunkeyism, has so liberally distributed over the face of the earth. the title of friendly isles, bestowed by cook upon the tonga archipelago, deserves to live; since it is not only appropriate, but forms the record of a pleasant fact,--the pacific character of our earliest intercourse with these interesting people. it may be here remarked, that mr wylde and other superficial map-makers have taken a most unwarrantable liberty with this title. instead of leaving it as bestowed by the great navigator,--applicable to the tonga archipelago alone,--they have _stretched_ it to include that of the samoans, and--would it be believed--that of the _feegees_? it is hardly necessary to point out the extreme absurdity of such a classification: since it would be difficult to find two nationalities much more unlike than those of tonga and feegee. that they have many customs in common, is due (unfortunately for the tongans) to the intercourse which proximity has produced; but in an ethnological sense, white is not a greater contrast to black, nor good to evil, than that which exists between a tongan and a feegeean. cook never visited the feegee archipelago,--he only saw some of these people while at tongataboo, and heard of their country as being _a large island_. had he visited that island,--or rather that group of over two hundred islands,--it is not at all likely he would have seen reason to extend to them the title which the map-makers have thought fit to bestow. instead of "friendly islands," he might by way of contrast have called them the "hostile isles," or given them that--above all others most appropriate, and which they truly deserve to bear--that old title celebrated in song! the "cannibal islands." an observer so acute as cook could scarce have overlooked the appropriateness of the appellation. the situation of the tonga, or friendly isles, is easily registered in the memory. the parallel of 20 degrees south, and the meridian of 175 degrees west, very nearly intersect each other in tofoa, which may be regarded as the central island of the group. it will thus be seen that their central point is 5 degrees east and 2 degrees south of the centre of the feegeean archipelago, and the nearest islands of the two groups are about three hundred miles apart. it is worthy of observation, however, that the tonga isles have the advantage, as regards the wind. the _trades_ are in their favour; and from tonga to feegee, if we employ a landsman's phraseology, it is "down hill," while it is all "up hill" in the contrary direction. the consequence is, that many tongans are constantly making voyages to the feegee group,--a large number of them having settled there (as stated elsewhere),--while but a limited number of feegeeans find their way to the friendly islands. there is another reason for this unequally-balanced migration: and that is, that the tongans are much bolder and better sailors than their western neighbours; for although fer excel any other south-sea islanders in the art of _building_ their canoes (or ships as they might reasonably be called), yet they are as far behind many others in the art of _sailing_ them. their superiority in ship-building may be attributed, partly, to the excellent materials which these islands abundantly afford; though this is not the sole cause. however much we may deny to the feegeeans the possession of moral qualities, we are at the same time forced to admit their great intellectual capacity,--as exhibited in the advanced state of their arts and manufactures. in intellectual capacity, however, the friendly islanders are their equals; and the superiority of the feegeeans even in "canoe architecture" is no longer acknowledged. it is true the tongans go to the feegee group for most of their large double vessels; but that is for the reasons already stated,--the greater abundance and superior quality of the timber and other materials produced there. in the feegee "dockyards," the tongans build for themselves; and have even improved upon the borrowed pattern. this intercourse,--partaking somewhat of the character of an alliance,-although in some respects advantageous to the friendly islanders, may be regarded, upon the whole, as unfortunate for them. if it has improved their knowledge in arts and manufactures, it has far more than counterbalanced this advantage by the damage done to their moral character. it is always much easier to make proselytes to vice than to virtue,--as is proved in this instance: for his intercourse with the ferocious feegee has done much to deteriorate the character of the tongan. from that source he has imbibed a fondness for war and other wicked customs; and, in all probability, had this influence been permitted to continue uninterrupted for a few years longer, the horrid habit of cannibalism--though entirely repugnant to the natural disposition of the tongans--would have become common among them. indeed, there can be little doubt that this would have been the ultimate consequence of the alliance; for already its precursors--human sacrifices and the vengeful immolation of enemies--had made their appearance upon the friendly islands. happily for the tongan, another influence--that of the missionaries--came just in time to avert this dire catastrophe; and, although this missionary interference has not been the best of its kind, it is still preferable to the paganism which it has partially succeeded in subduing. the tongan archipelago is much less extensive than that of the feegees,--the islands being of a limited number, and only five or six of them of any considerable size. tongataboo, the largest, is about ninety miles in circumference. from the most southern of the group eoo, to yavan at the other extremity, it stretches, northerly or northeasterly, about two hundred miles, in a nearly direct line. the islands are all, with one or two exceptions, low-lying, their surface being diversified by a few hillocks or mounds, of fifty or sixty feet in height, most of which have the appearance of being artificial. some of the smaller islets, as kao, are mountains of some six hundred feet elevation, rising directly out of the sea; while tofoa, near the eastern edge of the archipelago, presents the appearance of an _elevated_ tableland. the larger number of them are clothed with a rich tropical vegetation, both natural and cultivated, and their botany includes most of the species common to the other islands of the south sea. we find the cocoa, and three other species of palm, the pandanus, the breadfruit in varieties, as also the useful musacaae,--the plantain, and banana. the ti-tree (_dracaena terminalis_), the paper-mulberry (_brousonetia papyrifera_), the sugar-cane, yams of many kinds, the tree yielding the well-known _turmeric_, the beautiful _casuarina_, and a hundred other sorts of plants, shrubs, or trees, valuable for the product of their roots or fruits, their sap and pith, of their trunks and branches, their leaves and the fibrous material of their bark. as a scenic decoration to the soil, there is no part of the world where more lovely landscapes are produced by the aid of a luxuriant vegetation. they are perhaps not equal in picturesque effect to those of the feegee group,--where mountains form an adjunct to the scenery,-but in point of soft, quiet beauty, the landscapes of the tonga islands are not surpassed by any others in the tropical world; and with the climate they enjoy--that of an endless summer--they might well answer to the description of the "abode of the blessed." and, indeed, when tasman first looked upon these islands, they perhaps merited the title more than any other spot on the habitable globe; for, if any people on this earth might be esteemed happy and blessed, surely it was the inhabitants of these fair isles of the far southern sea. tasman even records the remarkable fact, that he saw no arms among them,--no weapons of war! and perhaps, at that time, neither the detestable trade nor its implements were known to them. alas! in little more than a century afterwards, this peaceful aspect was no longer presented. when the great english navigator visited these islands, he found the war-club and spear in the hands of the people, both of feegee pattern, and undoubtedly of the same ill-omened origin. the personal appearance of the friendly islanders differs not a great deal from that of the other south-sea tribes or nations. of course we speak only of the true polynesians of the brown complexion, without reference to the black-skinned islanders--as the feegees and others of the papuan stock. the two have neither resemblance nor relationship to one another; and it would not be difficult to show that they are of a totally distinct origin. as for the blacks, it is not even certain that they are themselves of one original stock; for the splendidly-developed cannibal of feegee presents very few features in common with the wretched kangaroo-eater of west australia. whether the black islanders (or melanesians as they have been designated) originally came from one source, is still a question for ethnologists; but there can be no doubt as to the direction whence they entered upon the colonisation of the pacific. that was certainly upon its western border, beyond which they have not made much progress: since the feegeean archipelago is at the present time their most advanced station to the eastward. the brown or polynesian races, on the contrary, began their migrations from the eastern border of the great ocean--in other words, they came from america; and the so-called indians of america are, in my opinion, the _progenitors_, not the _descendants_, of these people of the ocean world. if learned ethnologists will give their attention to this view of the subject, and disembarrass their minds of that fabulous old fancy, about an original stock situated somewhere (they know not exactly where) upon the steppes of asia, they will perhaps arrive at a more rational hypothesis about the peopling of the so-called new worlds, both the american and oceanic. they will be able to prove--what might be here done if space would permit--that the polynesians are emigrants from tropical america, and that the sandwich islanders came originally from california, and not the californians from the island homes of hawaii. it is of slight importance here how this question may be viewed. enough to know that the natives of the tonga group bear a strong resemblance to those of the other polynesian archipelagos--to the otaheitans and new zealanders, but most of all to the inhabitants of the samoan or navigators' islands, of whom, indeed, they may be regarded as a branch, with a separate political and geographical existence. their language also confirms the affinity, as it is merely a dialect of the common tongue spoken by all the polynesians. whatever difference exists between the tongans and other polynesians in point of personal appearance, is in favour of the former. the men are generally regarded as the best-looking of all south-sea islanders, and the women among the fairest of their sex. many of them would be accounted beautiful in any part of the world; and as a general rule, they possess personal beauty in a fer higher degree than the much-talked-of otaheitans. the tongans are of tall stature--rather above than under that of european nations. men of six feet are common enough; though few are seen of what might be termed gigantic proportions. in fact, the true medium size is almost universal, and the excess in either direction forms the exception. the bulk of their bodies is in perfect proportion to their height. unlike the black feegeeans--who are often bony and gaunt--the tongans possess well-rounded arms and limbs; and the hands and feet, especially those of the women, are small and elegantly shaped. to give a delineation of their features would be a difficult task--since these are so varied in different individuals, that it would be almost impossible to select a good typical face. indeed the same might be said of nearly every nation on the face of the earth; and the difficulty will be understood by your making an attempt to describe some face that will answer for every set of features in a large town, or even a small village; or still, with greater limitation, for the different individuals of a single family. just such a variety there will be found among the faces of the friendly islanders, as you might note in the inhabitants of an english town or county; and hence the difficulty of making a correct likeness. a few characteristic points, however, may be given, both as to their features and complexion. their lips are scarcely ever of a thick or negro form; and although the noses are in general rounded at the end, this rule is not universal;--many have genuine roman noses, and what may be termed a full set of the best italian features. there is also less difference between the sexes in regard to their features than is usually seen elsewhere--those of the women being only distinguished by their less size. the forms of the women constitute a more marked distinction; and among the beauties of tonga are many that might be termed models in respect to shape and proportions. in colour, the tongans are lighter than most other south-sea islanders. some of the better classes of women--those least exposed to the open air--show skins of a light olive tint; and the children of all are nearly white after birth. they become browner less from age than exposure to the sun; for, as soon as they are able to be abroad, they scarce ever afterwards enter under the shadow of a roof, except during the hours of night. the tongans have good eyes and teeth; but in this respect they are not superior to many other oceanic tribes--even the black feegeeans possessing both eyes and "ivories" scarce surpassed anywhere. the tongans, however, have the advantage of their dusky neighbours in the matter of hair--their heads being clothed with a luxuriant growth of true hair. sometimes it is quite straight, as among the american indians, but oftener with a slight wave or undulation, or a curl approaching, but never quite arriving at the condition of "crisp." his hair in its natural colour is jet black; and it is to be regretted that the tongans have not the good taste to leave it to its natural hue. on the contrary, their fashion is to stain it of a reddish-brown, a purple or an orange. the brown is obtained by the application of burnt coral, the purple from a vegetable dye applied poultice-fashion to the hair, and the orange is produced by a copious lathering of common turmeric,--with which the women also sometimes anoint their bodies, and those of their children. this fashion of hair-dyeing is also common to the feegees, and whether they obtained it from the tongans, or the tongans from them, is an unsettled point. the more probable hypothesis would be, that among many other ugly customs, it had its origin in feegee-land,--where, however, the people assign a reason for practising it very different from the mere motive of ornament. they allege that it also serves a useful purpose, in preventing the too great fructification of a breed of parasitic insects,--that would otherwise find--the immense mop of the frizzly feegeean a most convenient dwelling-place, and a secure asylum from danger. this may have had something to do with the origin of the custom; but once established for purposes of utility, it is now confirmed, and kept up by the tongans as a useless ornament. their taste in the colour runs exactly counter to that of european fashionables. what a pity it is that the two could not make an exchange of hair! then both parties, like a pair of advertisements in the "times," would exactly _fit_ each other. besides the varied fashion in colours, there is also great variety in the styles in which the tongans wear their hair. some cut it short on one side of their head, leaving it at full length on the other; some shave a small patch, or cut off only a single lock; while others--and these certainly display the best taste--leave it to grow out in all its full luxuriance. in this, again, we find the european fashion reversed, for the women are those who wear it shortest. the men, although they are not without beard, usually crop this appendage very close, or shave it off altogether,--a piece of shell, or rather a pair of shells, serving them for a razor. the mode is to place the thin edge of one shell underneath the hair,-just as a hair-cutter does his comb,--and with the edge of the other applied above, the hairs are rasped through and divided. there are regular barbers for this purpose, who by practice have been rendered exceedingly dexterous in its performance; and the victim of the operation alleges that there is little or no pain produced,--at all events, it does not bring the tears to his eyes, as a dull razor often does with us poor thin-skinned europeans! the dress of the tongans is very similar to that of the otaheitans, so often described and well-known; but we cannot pass it here without remarking a notable peculiarity on the part of the polynesian people, as exhibited in the character of their costume. the native tribes of almost all other warm climates content themselves with the most scant covering,--generally with no covering at all, but rarely with anything that may be termed a skirt. in south america most tribes wear the "guayuco,"--a mere strip around the loins, and among the feegees the "malo" or "masi" of the men, and the scant "liku" of the women are the only excuse for a modest garment. in africa we find tribes equally destitute of clothing, and the same remark will apply to the tropical countries all around the globe. here, however, amongst a people dwelling in the middle of a vast ocean,--isolated from the whole civilised world, we find a natural instinct of modesty that does credit to their character, and is even in keeping with that character, as first observed by voyagers to the south seas. whatever acts of indelicacy may be alleged against the otaheitans, this has been much exaggerated by their intercourse with immoral white men; but none of such criminal conduct can be charged against the natives of the friendly isles. on the contrary, the behaviour of these, both among themselves and in presence of european visitors, has been ever characterised by a modesty that would shame either regent street or ratcliffe highway. a description of the national costume of the tongans, though often given, is not unworthy of a place here; and we shall give it as briefly as a proper understanding of it will allow. there is but one "garment" to be described, and that is the "pareu," which will be better understood, perhaps, by calling it a "petticoat." the material is usually of "tapa" cloth,--a fabric of native manufacture, to be described hereafter,--and the cutting out is one of the simplest of performances, requiring neither a tailor for the men, nor a dressmaker for the other sex, for every one can make their own pareu. it needs only to clip a piece of "tapa" cloth in the form of an "oblong square"-an ample one, being about two yards either way. this is wrapped round the body,--the middle part against the small of the back,--and then both ends brought round to the front are lapped over each other as far as they will go, producing, of course, a double fold of the cloth. a girdle is next tied around the waist,--usually a cord of ornamental plait; and this divides the piece of tapa into body and skirt. the latter is of such a length as to stretch below the calf of the leg,-sometimes down to the ankle,--and the upper part or body _would_ reach to the shoulders, if the weather required it, and often does _when the missionaries require it_. but not at any other time: such an ungraceful mode of wearing the pareu was never intended by the simple tongans, who never dreamt of there being any immodesty in their fashion until told of it by their puritanical preceptors! tongan-fashion, the pareu is a sort of tunic, and a most graceful garment to boot; methodist fashion, it becomes a gown or rather a sleeveless wrapper that resembles a sack. but if the body part is not to be used in this way, how, you will ask, is it to be disposed of? is it allowed to hang down outside, like the gown of a slattern woman, who has only half got into it? no such thing. the natural arrangement is both simple and peculiar; and produces, moreover, a costume that is not only characteristic but graceful to the eye that once becomes used to it. the upper half of the tapa cloth is neatly folded or turned, until it becomes a thick roll; and this roll, brought round the body, just above the girdle, is secured in that position. the swell thus produced causes the waist to appear smaller by contrast; and the effect of a well-formed bust, rising above the roll of tapa cloth, is undoubtedly striking and elegant. in cold weather, but more especially at night, the roll is taken out, and the shoulders are then covered; for it is to be observed that the pareu, worn by day as a dress, is also kept on at night as a sleeping-gown, more especially by those who possess only a limited wardrobe. it is not always the cold that requires it to be kept on at night. it is more used, at this time, as a protection against the mosquitoes, that abound amidst the luxuriant vegetation of the tongan islands. the "pareu" is not always made of the "tapa" cloth. fine mats, woven from the fibres of the screw-pine (pandanus), are equally in vogue; and, upon festive occasions, a full-dress pareu is embellished with red feather-work, adding greatly to the elegance and picturesqueness of its appearance. a coarser and scantier pareu is to be seen among the poorer people, the material of which is a rough tapa, fabricated from the bark of the breadfruit, and not unfrequently this is only a mere strip wrapped around the loins; in other words, a "malo," "maro," or "maso,"-as it is indifferently written in the varied orthography of the voyagers. having described this only and unique garment, we have finished with the costume of the tongan islanders, both men and women,-for both wear the pareu alike. the head is almost universally uncovered; and no head-dress is ever worn unless a cap of feathers by the great chiefs, and this only upon rare and grand occasions. it is a sort of chaplet encircling the head, and deeper in front than behind. over the forehead the plumes stand up to a height of twelve or fifteen inches, gradually lowering on each side as the ray extends backward beyond the ears. the main row is made with the beautiful tail-plumes of the tropic bird _phaeton aetherus_, while the front or fillet part of the cap is ornamented with the scarlet feathers of a species of parrot. the head-dress of the women consists simply of fresh flowers: a profusion of which--among others the beautiful blossoms of the orange-is always easily obtained. an ear-pendant is also worn,--a piece of ivory of about two inches in length, passed through two holes, pierced in the lobe of the ear for this purpose. the pendant hangs horizontally, the two holes balancing it, and keeping it in position. a necklace also of pearl-shells, shaped into beads, is worn. sometimes a string of the seeds of the pandanus is added, and an additional ornament is an armlet of mother-o'-pearl, fashioned into the form of a ring. only the men tattoo themselves; and the process is confined to that portion of the body from the waist to the thighs, which is always covered with the pareu. the practice of tattooing perhaps first originated in the desire to equalise age with youth, and to hide an ugly physiognomy. but the tongan islander has no ugliness to conceal, and both men and women have had the good taste to refrain from disfiguring the fair features which nature has so bountifully bestowed upon them. the only marks of tattoo to be seen upon the women are a few fine lines upon the palms of their hands; nor do they disfigure their fair skins with the hideous pigments so much in use among other tribes, of what we are in the habit of terming _savages_. they anoint the body with a fine oil procured from the cocoanut, and which is also perfumed by various kinds of flowers that are allowed to macerate in the oil; but this toilet is somewhat expensive, and is only practised by the better classes of the community. all, however, both rich and poor, are addicted to habits of extreme cleanliness, and bathing in fresh water is a frequent performance. they object to bathing in the sea; and when they do so, always finish the bath by pouring fresh water over their bodies,--a practice which they allege prevents the skin from becoming rough, which the sea-water would otherwise make it. house architecture in the tongan islands is in rather a backward state. they have produced no wrens nor inigo joneses; but this arises from a natural cause. they have no need for great architects,--scarce any need for houses either,--and only the richer tongans erect any dwelling more pretentious than a mere shed. a few posts of palm-trunks are set up, and upon these are placed the cross-beams, rafters, and roof. pandanus leaves, or those of the sugar-cane, form the thatch; and the sides are left open underneath. in the houses of the chiefs and more wealthy people there are walls of pandanus mats, fastened to the uprights; and some of these houses are of considerable size and neatly built. the interiors are kept scrupulously clean,--the floors being covered with beautiful mats woven in coloured patterns, and presenting all the gay appearance of costly carpeting. there are neither chairs nor tables. the men sit tailor-fashion, and the women in a reclining posture, with both limbs turned a little to one side and backwards. a curious enclosure or partition is formed by setting a stiff mat, of about two feet width, upon its edge,--the roll at each end steadying it and keeping it in an upright position. the utensils to be observed are dishes, bowls, and cups,--usually of calabash or cocoa-shells,--and an endless variety of baskets of the most ingenious plait and construction. the "stool-pillow" is also used; but differing from that of the feegees in the horizontal piece having a hollow to receive the head. many kinds of musical instruments may be seen,--the pandean pipes, the nose-flute, and various kinds of bamboo drums, all of which have been minutely described by travellers. i am sorry to add that war-clubs and spears for a similar purpose are also to be observed conspicuous among the more useful implements of peace. bows and arrows, too, are common; but these are only employed for shooting birds and small rodents, especially rats, that are very numerous and destructive to the crops. for food, the tongans have the pig,--the same variety as is so generally distributed throughout the oceanic islands. it is stated that the feegeeans obtained this animal from the friendly isles; but i am of opinion that in this case the benefit came the other way, as the _sus papua_ is more likely to have entered the south sea from its leeward rather than its windward side. in all likelihood the dog may have been derived from the eastern edge; but the pigs and poultry would seem to be of western origin,--western as regards the position of the pacific. the principal food of the friendly islanders, however, is of a vegetable nature, and consists of yams, breadfruit, taro, plantains, sweet potatoes, and, in fact, most of those roots and fruits common to the other islands of the pacific. fish also forms an important article of their food. they drink the "kava," or juice of the _piper methisticum_--or rather of its roots chewed to a pulp; but they rarely indulge to that excess observed among the feegees, and they are not over fond of the drink, except as a means of producing a species of intoxication which gives them a momentary pleasure. many of them, especially the women, make wry faces while partaking of it; and no wonder they do, for it is at best a disgusting beverage. the time of the tongan islanders is passed pleasantly enough, when there is no wicked war upon hand. the men employ themselves in cultivating the ground or fishing; and here the woman is no longer the mere slave and drudge--as almost universally elsewhere among savage or even semi-civilised nations. this is a great fact, which tells a wondrous tale--which speaks trumpet-tongued to the credit of the tongan islander. not only do the men share the labour with their more delicate companions, but everything else--their food, conversation, and every enjoyment of life. both partake alike--eat together, drink together, and join at once in the festive ceremony. in their grand dances--or balls as they might more properly be termed--the women play an important part; and these exhibitions, though in the open air, are got up with an elegance and eclat that would not disgrace the most fashionable ballroom in christendom. their dances, indeed, are far more graceful than anything ever seen either at "almacks" or the "jardin mabille." the principal employment of the men is in the cultivation of their yam and plantain grounds, many of which extend to the size of fields, with fences that would almost appear to have been erected as ornaments. these are of canes, closely set, raised to the height of six feet--wide spaces being left between the fences of different owners to serve as roads for the whole community. in the midst of these fields stand the sheds, or houses, surrounded by splendid forms of tropic vegetation, and forming pictures of a softly beautiful character. the men also occupy themselves in the construction of their canoes,--to procure the large ones, making a voyage as already stated, to the feegee islands, and sometimes remaining absent for several years. these, however, are usually professional boat-builders, and form but a very small proportion of the forty thousand people who inhabit the different islands of the tongan archipelago. the men also occasionally occupy themselves in weaving mats and wicker baskets, and carving fancy toys out of wood and shells; but the chief part of the manufacturing business is in the hands of the women--more especially the making of the tapa cloth, already so often mentioned. an account of the manufacture may be here introduced, with the proviso, that it is carried on not only by the women of the feegee group, but by those of nearly all the other polynesian islands. there are slight differences in the mode of manufacture, as well as in the quality of the fabric; but the account here given, both of the making and dyeing, will answer pretty nearly for all. the bark of the malo-tree, or "paper-mulberry," is taken off in strips, as long as possible, and then steeped in water, to facilitate the separation of the epidermis, which is effected by a large volute shell. in this state it is kept for some time, although fit for immediate use. a log, flattened on the upper side, is so fixed as to spring a little, and on this the strips of bark--or _masi_, as it is called--are beaten with an _iki_, or mallet, about two inches square, and grooved longitudinally on three of its sides. two lengths of the wet _masi_ are generally beaten together, in order to secure greater strength--the gluten which they contain being sufficient to keep their fibres united. a two-inch strip can thus be beaten out to the width of a foot and a half; but the length is at the same time reduced. the pieces are neatly lapped together with the starch of the taro, or arrowroot, boiled whole; and thus reach a length of many yards. the "widths" are also joined by the same means laterally, so as to form pieces of fifteen or thirty feet square; and upon these, the ladies exhaust their ornamenting skill. the middle of the square is printed with a red-brown, by the following process:--upon a convex board, several feet long, are arranged parallel, at about a finger-width apart, thin straight slips of bamboo, a quarter of an inch wide. by the side of these, curved pieces, formed of the midrib of cocoanut leaflets, are arranged. on the board thus prepared the cloth is laid, and rubbed over with a dye obtained from the _lauci_ (_aleurites triloba_). the cloth of course, takes the dye upon those parts which receive pressure, being supported by the slips beneath; and thus shows the same pattern in the colour employed. a stronger preparation of the same dye, laid on with a sort of brush, is used to divide the square into oblong compartments, with large round or radiated dots in the centre. the _kesa_, or dye, when good, dries bright. blank borders, two or three feet wide, are still left on two sides of the square; and to elaborate the ornamentation of these, so as to excite applause, is the pride of every lady. there is now an entire change of apparatus. the operator works on a plain board; the red dye gives place to a jet black; the pattern is now formed of a strip of banana-leaf placed on the upper surface of the cloth. out of the leaf is cut the pattern--not more than an inch long--which the lady wishes to print upon the border, and holds by her first and middle finger, pressing it down with the thumb. then taking a soft pad of cloth steeped in the dye, in her right hand, she rubs it firmly over the stencil, and a sharp figure is made. the practised fingers of the operator move quickly, but it is, after all, a tedious process. i regret to add, that the men employ themselves in an art of less utility: the manufacture of war weapons--clubs and spears--which the people of the different islands, and even those of the same, too often brandish against one another. this war spirit is entirely owing to their intercourse with the ferocious feegees, whose boasting and ambitious spirit they are too prone to emulate. in fact, their admiration of the feegee habits is something surprising; and can only be accounted for by the fact, that while visiting these savages and professed warriors, the tongans have become imbued with a certain fear of them. they acknowledge the more reckless spirit of their allies, and are also aware that in intellectual capacity the black men are not inferior to themselves. they certainly are inferior in courage, as in every good moral quality; but the tongans can hardly believe this, since their cruel and ferocious conduct seems to give colour to the contrary idea. in fact, it is this that inspires them with a kind of respect, which has no other foundation than a vague sense of fear. hence they endeavour to emulate the actions that produce this fear, and this leads them to go to war with one another. it is to be regretted that the missionaries have supplied them with a motive. their late wars are solely due to missionary influence,--for methodism upon the tongan islands has adopted one of the doctrines of mahomet, and believes in the faith being propagated by the sword! a usurper, who wishes to be king over the whole group, has embraced the methodist form of christianity, and linked himself with its teachers,-who offer to aid him with all their influence; and these formerly peaceful islands now present the painful spectacle of a divided nationality,--the "christian party," and the "devil's party." the object of conquest on the part of the former is to place the devil's party under the absolute sovereignty of a despot, whose laws will be dictated by his missionary ministers. of the mildness of these laws we have already some specimens, which of course extend only to the "christianised." one of them, which refers to the mode of wearing the pareu, has been already hinted at,--and another is a still more off-hand piece of legislation: being an edict that no one hereafter shall be permitted to smoke tobacco, under pain of a most severe punishment. when it is considered that the tongan islander enjoys the "weed" (and grows it too) more than almost any other smoker in creation, the severity of the "taboo" may be understood. but it is very certain, if his methodist majesty were once firmly seated on his throne, _bluer_ laws than this would speedily be proclaimed. the american commodore wilkes found things in this warlike attitude when he visited the tongan islands; but perceiving that the right was clearly on the side of the "devil's party," declined to interfere; or rather, his interference, which would have speedily brought peace, was rejected by the christian party, instigated by the sanguinary spirit of their "christian" teachers. not so, captain croker, of her britannic majesty's service, who came shortly after. this unreflecting officer--loath to believe that royalty could be in the wrong--at once took side with the king and christians, and dashed headlong into the affair. the melancholy result is well-known. it ended by captain croker leaving his body upon the field, alongside those of many of his brave tars; and a disgraceful retreat of the christian party beyond the reach of their enemies. this interference of a british war-vessel in the affairs of the tongan islanders, offers a strong contrast to our conduct when in presence of the feegees. there we have the fact recorded of british officers being eyewitnesses of the most horrid scenes,--wholesale murder and cannibalism,--with full power to stay the crime and full authority to punish it,--that authority which would have been freely given them by the accord and acclamation of the whole civilised world,--and yet they stood by, in the character of idle spectators, fearful of breaking through the delicate icy line of _non-intervention_! a strange theory it seems, that murder is no longer murder, when the murderer and his victim chance to be of a different nationality from our own! it is a distinction too delicate to bear the investigation of the philosophic mind; and perhaps will yet yield to a truer appreciation of the principles of justice. there was no such squeamishness displayed when royalty required support upon the tongan islands; nor ever is there when self-interest demands it otherwise. mercy and justice may both fail to disarrange the hypocritical fallacy of non-intervention; but the principle always breaks down at the call of political convenience. chapter nine. the turcomans. asia has been remarkable, from the earliest times, for having a large population without any fixed place of residence, but who lead a _nomade_ or wandering life. it is not the only quarter of the globe where this kind of people are found: as there are many _nomade_ nations in africa, especially in the northern division of it; and if we take the indian race into consideration, we find that both the north and south-american continents have their tribes of wandering people. it is in asia, nevertheless, that we find this unsettled mode of life carried out to its greatest extent,--it is there that we find those great pastoral tribes,--or "hordes," as they have been termed,--who at different historical periods have not only increased to the numerical strength of large nationalities, but have also been powerful enough to overrun adjacent empires, pushing their conquests even into europe itself. such were the invasions of the mongols under zenghis khan, the tartars under timour, and the turks, whose degenerate descendants now so feebly hold the vast territory won by their wandering ancestors. the pastoral life, indeed, has its charms, that render it attractive to the natural disposition of man, and wherever the opportunity offers of following it, this life will be preferred to any other. it affords to man an abundant supply of all his most prominent wants, without requiring from him any very severe exertion, either of mind or body; and, considering the natural indolence of asiatic people, it is not to be wondered at that so many of them betake themselves to this mode of existence. their country, moreover, is peculiarly favourable to the development of a pastoral race. perhaps not one third of the surface of the asiatic continent is adapted to agriculture. at least one half of it is occupied by treeless, waterless plains, many of which have all the characters of a desert, where an agricultural people could not exist, or at all events, where their labour would be rewarded by only the most scant and precarious returns. even a pastoral people in these regions would find but a sorry subsistence, were they confined to one spot; for the luxurious herbage which, for the most part, characterises the great savanna plains of america, is either altogether wanting upon the _steppes_ of asia, or at best very meagre and inconstant. a fixed abode is therefore impossible, except in the most fertile tracts or _oases_: elsewhere, the nomad life is a necessity arising from the circumstances of the soil. it would be difficult to define exactly the limits of the territory occupied by the wandering races in asia; but in a general way it may be said that the whole central portion of the continent is thus peopled: indeed, much more than the central portion,--for, if we except the rich agricultural countries of hindostan and a small portion of persia, arabia, and turkey, the whole of asia is of this character. the countries known as balk and bokara, yarkand and khiva, with several others of equal note, are merely the central points of oases,--large towns, supported rather by commerce than by the produce of agriculture, and having nomad tribes dwelling within sight of their walls. even the present boundaries of asiatic turkey, arabia and persia, contain within them a large proportion of nomadic population; and the same is true of eastern poland and russia in europe. a portion of the affghan and belochee country is also inhabited by nomad people. these wandering people are of many different types and races of men; but there is a certain similarity in the habits and customs of all: as might be expected from the similar circumstances in which they are placed. it is always the more sterile steppes that are thus occupied; and this is easily accounted for: where fertile districts occur the nomad life is no longer necessary. even a wandering tribe, entering upon such a tract, would no longer have a motive for leaving it, and would soon become attached to the soil,--in other words, would cease to be wanderers; and whether they turned their attention to the pursuit of agriculture, or not, they would be certain to give up their tent-life, and fix themselves in a permanent abode. this has been the history of many asiatic tribes; but there are many others, again, who from time immemorial, have shown a repugnance to the idea of fixing themselves to the soil. they prefer the free roving life which the desert enables them to indulge in; and wandering from place to place as the choice of pasture guides them, occupy themselves entirely in feeding their flocks and herds,--the sole means of their subsistence. these never have been, and never could be, induced to reside in towns or villages. nor is it that they have been driven into these desert tracts to seek shelter from political oppression,--as is the case with some of the native tribes of africa and america. on the contrary, these asiatic nomads are more often the aggressors than the objects of aggression. it is rather a matter of choice and propensity with them: as with those tribes of the arabian race,--known as "bedouins." the proportion of the asiatic wandering population to those who dwell in towns, or fixed habitations, varies according to the nature of the country. in many extensive tracts, the former greatly exceed the latter; and the more sterile steppes are almost exclusively occupied by them. in general, they acknowledge the sovereignty of some of the great powers,--such as the empires of china, russia, and turkey, the kingdom of persia, or that of several powerful khans, as those of khiva and bokara; but this sovereignty is, for the most part, little more than nominal, and their allegiance is readily thrown off, whenever they desire it. it is rarely so strong, as to enable any of the aforesaid powers to draw a heavy tribute from them; and some of the more warlike of the wandering tribes are much courted and caressed,--especially when their war services are required. in general they claim an hereditary right to the territories over which they roam, and pay but little heed to the orders of either king, khan, or emperor. as already stated, these wandering people are of different races; in fact, they are of nearly all the varieties indigenous to the asiatic continent; and a whole catalogue of names might be given, of which mongols, tartars, turcomans, usbecks, kirghees, and calmucks, are perhaps the most generally known. it has been also stated that in many points they are alike; but there are also many important particulars in which they differ,--physical, moral, and intellectual. some of the "hordes," or tribes, are purely pastoral in their mode of life, and of mild and hospital dispositions, exceedingly fond of strangers, and kind to such as come among them. others again are averse to all intercourse with others, than those of their own race and religion, and are shy, if not inhospitable, when visited by strangers. but there is a class of a still less creditable character,--a large number of tribes that are not only inhospitable, and hostile to strangers, but as ferocious and bloodthirsty as any savages in africa, america, or the south-sea islands. as a fair specimen of this class we select the turcomans; in fact, they may be regarded as its _type_; and our description henceforward may be regarded as applying particularly to these people. the country of the turcomans will be found upon the map without difficulty; but to define its exact boundary would be an impossibility, since none such exists. were you to travel along the whole northern frontier of persia, almost from the gates of teheran to the eastern frontier of the kingdom,--or even further towards balk,--you would be pretty sure of hearing of turcoman robbers, and in very great danger of being plundered by them,--which last misfortune would be of less importance, as it would only be the prelude to your being either murdered on the spot, or carried off by them into captivity. in making this journey along the northern frontier of persia, you would become acquainted with the whereabouts of the turcoman hordes; or rather you would discover that the whole north part of persia,--a good broad band of it extending hundreds of miles into its interior,--if not absolutely in possession of the turcomans, is overrun and plundered by them at will. this, however, is not their home,--it is only their "stamping-ground,"--the home of their victims. their place of habitual residence lies further to the north, and is defined with tolerable accuracy by its having the whole eastern shore of the caspian sea for its western border, while the amou river (the ancient oxus) may be generally regarded as the limit of their range towards the east. some tribes go still further east than the amou; but those more particularly distinguished for their plundering habits dwell within the limits described,--north of the elburz mountains, and on the great steppe of kaurezm, where they are contiguous to the usbeck community of khiva. the whole of this immense territory, stretching from the eastern shore of the caspian to the amou and aral sea, may be characterised as a true desert. here and there oases exist, but none of any importance, save the country of khiva itself: and even that is but a mere irrigated strip, lying on both banks of the oxus. indeed, it is difficult to believe that this territory of khiva, so insignificant in superficial extent, could have been the seat of a powerful empire, as it once was. the desert, then, between the caspian sea and the oxus river may be regarded as the true land of the turcomans, and is usually known as turcomania. it is to be remembered, however, that there are some kindred tribes not included within the boundaries of turcomania--for the turkistan of the geographers is a country of much larger extent; besides, an important division of the turcoman races are settlers, or rather wanderers in armenia. to turcomania proper, then, and its inhabitants, we shall confine our remarks. we shall not stay to inquire into the origin of the people now called turcomans. were we to speculate upon that point, we should make but little progress in an account of their habits and mode of living. they are usually regarded as of tartar origin, or of usbeck origin, or of mongolian race; and in giving this account of them, i am certain that i add very little to your knowledge of what they really are. the truth is, that the words tartar and mongol and some half-dozen other titles, used in relation to the asiatic races, are without any very definite signification,--simply because the relative distinctions of the different nations of that continent are very imperfectly known; and learned ethnologists are river loath to a confession of limited knowledge. one of this class, mr latham,--who requires only a few words of their language to decide categorically to what variety of the human race a people belongs,--has unfortunately added to this confusion by pronouncing nearly everybody _mongolian_: placing the proud turbaned turk in juxtaposition with the squat and stunted laplander! of course this is only bringing us back to the old idea, that all men are sprung from a single pair of first parents,--a doctrine, which, though popular, is difficult to reconcile with the rational knowledge derived from ethnological investigation. it matters little to our present purpose from what original race the turcoman has descended: whether he be a true turk, as some regard him, or whether he is a descendant of the followers of the great khan of the tartars. he possesses the tartar physiognomy to a considerable extent-some of the tribes more than others being thus distinguished,--and high cheek-bones, flat noses, small oblique eyes, and scanty beards, are all characteristics that are very generally observed. some of these peculiarities are more common among the women than the men--many of the latter being tall, stout, and well-made, while a large number may be seen who have the regular features of a persian. perhaps it would be safest to consider the present turcoman tribes as not belonging to a pure stock, but rather an admixture of several; and their habit of taking slaves from other nations, which has for a long time existed among them, would give probability to this idea. at all events, without some such hypothesis, it is difficult to account for the wonderful variety, both in feature and form, that is found among them. their complexion is swarthy, in some cases almost brown as that of an american indian; but constant exposure to the open air, in all sorts of weather, has much to do in darkening the hue of their skin. the newborn children are nearly as white as those of the persians; and their young girls exhibit a ruddy brunette tint, which some consider even more pleasing than a perfectly white complexion. the costume of the turcoman, like that of most oriental nations, is rich and picturesque. the dress of the men varies according to rank. some of the very poorer people wear nothing but a short woollen tonic or shirt, with a pair of coarse woollen drawers. others, in place of this shirt, are clad in a longer garment, a sort of robe or wrapper, like a gentleman's dressing-gown, made of camel's-hair cloth, or some coarse brown woollen staff. but the true turcoman costume, and that worn by all who can afford it, consists of a garment of mixed silk and cotton,-the _baronnee_,--which descends below the knee, and though open in front, is made to button over the breast quite up to the neck. a gay sash around the waist adds to the effect; and below the skirt are seen trowsers of cotton or even silk. cloth wrappers around the legs serve in the place of boots or gaiters; and on the feet are worn slippers of persian fashion, with socks of soft koordish leather. as the material of which the baronnee is made is of good quality--a mixture of silk and cotton--and as the fabric is always striped or checkered in colours of red, blue, purple, and green, the effect produced is that of a certain picturesqueness. the head-dress adds to this appearance--being a high fur cap, with truncated top, the fur being that beautiful kind obtained from the skins of the astracan lamb, well-known in commerce. these caps are of different colours, either black, red, or grey. another style of head-dress much worn is a round-topped or helmet-shaped cap, made of quilted cotton-stuff; but this kind, although in use among the turcomans, is a more characteristic costume of their enemies, the "koords," who wear it universally. the "jubba" is a kind of robe generally intended to go over the other garments, and is usually of woollen or camel's-hair cloth. it is also made like a dressing-gown, with wide sleeves,--tight, however, around the wrist. it is of ample dimensions, and one side is lapped over the other across the front, like a double-breasted coat. the "jubba" is essentially a national garment. the dress of the women is exceedingly picturesque. it is thus minutely described by a traveller:-"the head-dress of these women is singular enough: most of them wear a lofty cap, with a broad crown, resembling that of a soldier's cap called a shako. this is stuck upon the back of the head; and over it is thrown a silk handkerchief of very brilliant colours, which covers the top, and falls down on each side like a veil. the front of this is covered with ornaments of silver and gold, in various shapes; more frequently gold coins, mohrs, or tomauns, strung in rows, with silver bells or buttons, and chains depending from them; hearts and other fanciful forms, with stones set in them. the whole gives rather the idea of gorgeous trappings for a horse, than ornaments for a female. "the frames of these monstrous caps are made of light chips of wood, or split reeds, covered with cloth; and when they do not wear these, they wrap a cloth around their heads in the same form; and carelessly throw another, like a veil over it. the veil or curtain above spoken of covers the mouth; descending to the breast. earrings are worn in the ears; and their long hair is divided, and plaited into four parts, disposed two on each side; one of which falls down behind the shoulders and one before, and both are strung with a profusion of gold ornaments, agates, cornelians, and other stones, according to the means and quality of the wearer. the rest of their dress consists of a long, loose vest or shirt, with sleeves, which covers the whole person down to the feet, and is open at the breast, in front, but buttons or ties close up to the neck: this is made of silk or cotton-stuff, red, blue, green, striped red, and yellow, checked, or various-coloured: underneath this, are the zere-jameh, or drawers, also of silk or cotton; and some wear a short _peerahn_ or shirt of the same. this, i believe, is all; but in the cold weather they wear, in addition, jubbas, or coats like those of the men, of striped stuff made of silk and cotton; on their feet they generally wear slippers like those of the persian women." the tents, or "portable houses" of the turcomans--as their movable dwellings rather deserve to be called--differ from most structures of the kind in use elsewhere. they are thus described by the same intelligent traveller:-"the portable wooden houses of the turcomans have been referred to by several writers; but i am not aware that any exact description of their structure has been given. the frame is curiously constructed of light wood, disposed in laths of about an inch broad by three quarters thick, crossing one another diagonally, but at right angles, about a foot asunder, and pinned at each crossing with thongs of raw hide, so as to be movable; and the whole framework may be closed up or opened in the manner of those toys for children that represent a company of soldiers, and close or expand at will, so as to form open or close column. "one or more pieces thus constructed being stretched out, surround a circular space of from fifteen to twenty feet diameter; and form the skeleton of the walls,--which are made firm by bands of hair or woollen ropes, hitched round the end of each rod, to secure it in its position. from the upper ends of these, rods of a similar kind, bent near the wall end into somewhat less than a right angle, are so disposed that the longer portions slope to the centre, and being tied with ropes, form the framework of a roof. over this is thrown a covering of black _numud_, leaving in the centre a large hole to give vent to the smoke, and light to the dwelling. similar numuds are wrapped round the walls; and outside of these, to keep all tight, is bound another frame, formed of split reeds or cane, or of very light and tough wood, tied together with strong twine, the pieces being perpendicular. this is itself secured by a strong, broad band of woven hair-stuff, which firmly unites. the large round opening at top is covered, as occasion requires, by a piece of numud, which is drawn off or on by a strong cord, like a curtain. if the wind be powerful, a stick is placed to leeward, which supports the fabric. "in most of these houses they do not keep a carpet or numud constantly spread; but the better classes use a carpet shaped somewhat in the form of a horseshoe, having the centre cut out for the fireplace, and the ends truncated, that those of inferior condition, or who do not choose to take off their boots, may sit down upon the ground. upon this carpet they place one or two other numuds, as may be required, for guests of distinction. when they have women in the tent, a division of split reeds is made for their convenience; but the richer people have a separate tent for their private apartments. "the furniture consists of little more than camels and horses; _joals_, or bags in which their goods are packed, and which are often made of a very handsome species of worsted velvet carpet, of rich patterns; the swords, guns, spears, bows and arrows, and other implements of the family, with odds and ends of every description, may be seen hung on the ends of the wooden rods, which form very convenient pins for the purpose. among some tribes all the domestic utensils are made of wood,--calleeoons, trays for presenting food, milk-vessels, etc: among others, all these things are formed of clay or metal. upon the black tops of the tents may frequently be seen large white masses of sour curd, expressed from buttermilk, and set to dry as future store; this, broken down and mixed with water, forms a very pleasant acidulous drink, and is used as the basis of that intoxicating beverage called _kimmiz_. the most common and most refreshing drink which they offer to the weary and over-heated traveller in the forenoon is buttermilk, or sour curds and water; and, indeed, a modification of this, with some other simple sherbets, are the only liquors presented at their meals. "such are the wooden houses of the turcomans, one of which just makes a camel's load. there are poorer ones, of a less artificial construction, the framework of which is formed of reeds. "the encampment is generally square, enclosing an open space, or forming a broad street, the houses being ranged on either side, with their doors towards each other. at these may always be seen the most picturesque groups, occupied with their various domestic duties, or smoking their simple wooden _calleeoons_. the more important encampments are surrounded by a fence of reeds, which serve to protect the flocks from petty thefts." it is now our place to inquire how the turcomans occupy their time. we have already described them as a pastoral and nomadic people; and, under ordinary circumstances, their employment consists in looking after their flocks. in a few of the more fertile oases they have habitations, or rather camps, of a more permanent character, where they cultivate a little corn or barley, to supply them with the material for bread; but these settlements, if they deserve the name, are only exceptional; and are used chiefly as a kind of head-quarters, where the women and property are kept, while the men themselves are absent on their thieving expeditions. more generally their herds are kept on the move, and are driven from place to place at short intervals of a few weeks or even days. the striking and pitching of their tents gives them employment; to which is added that of milking the cattle, and making the cheese and butter. the women, moreover, fill up their idle hours in weaving the coarse blankets, or "numuds," in plaiting mats, and manufacturing various articles of dress or household use. the more costly parts of their costume, however, are not of native manufacture: these are obtained by trade. the men alone look after the camels and horses, taking special care of the latter. their flocks present a considerable variety of species. besides horses, cattle, and sheep, they own many camels, and they have no less than three distinct varieties of this valuable animal in their possession,-the dromedary with two humps, and the common camel. the third sort is a cross breed--or "mule"--between these two. the dromedary is slightly made, and swifter than either of the others, but it is not so powerful as either; and being inferior as a beast of burden, is least cared for by the turcomans. the one-humped camel is in more general use, and a good one will carry a load of six or seven hundred pounds with ease. the mule camel is more powerful than either of its parents, and also more docile and capable of greater endurance. it grows to a very large size, but is low in proportion to its bulk, with stout, bony legs, and a large quantity of coarse, shaggy hair on its haunch, shoulders, neck, and even on the crown of its head, which gives it a strange, somewhat fantastic appearance. its colour varies from light grey to brown, though it is as often nearly black. this kind of camel will carry a load of from eight hundred to a thousand pounds. the turcoman sheep are of the large-tailed breed,--their tails often attaining enormous dimensions. this variety of sheep is a true denizen of the desert, the fat tail being unquestionably a provision of nature against seasons of hunger,--just as in the single protuberance, or "hump," upon the camel. the horse of the turcoman is the animal upon which he sets most value. the breed possessed by him is celebrated over all eastern asia, as that of the arab is in the west. they cannot be regarded, however, as handsome horses, according to the true standard of "horse beauty;" but the turcoman cares less for this than for other good qualities. in point of speed and endurance they are not excelled, if equalled, by the horses of any other country. their size is that of the common horse, but they are very different in make. their bodies are long in proportion to the bulk of carcass; and they do not appear to possess sufficient compactness of frame. their legs are also long, generally falling off in muscular development below the knee-joint; and they would appear to an english jockey too narrow in the counter. they have also long necks, with large heavy heads. these are the points which are generally observed in the turcoman horses; but it is to be remarked, that it is only when in an under-condition they look so ungraceful; and in this condition their owners are accustomed to keep them, especially when they have any very heavy service to perform. feeding produces a better shape, and brings them much nearer to the look of a well-bred english horse. their powers of endurance are indeed, almost incredible: when trained for a chappow, or plundering expedition, they will carry their rider and provisions for seven or eight days together, at the rate of twenty or even thirty fursungs--that is, from eighty to one hundred miles--a day. their mode of training is more like that of our pugilistic and pedestrian performers, than that adopted for race-horses. when any expedition of great length, and requiring the exertion of much speed, is in contemplation, they commence by running their horses every day for many miles together; they feed them sparingly on barley alone, and pile numuds upon them at night to sweat them, until every particle of fat has been removed, and the flesh becomes hard and tendonous. of this they judge by the feel of the muscles, particularly on the crest, at the back of the neck, and on the haunches; and when these are sufficiently firm and hard, they say in praise of the animal, that "his flesh is marble." after this sort of training, the horse will proceed with expedition and perseverance, for almost any length of time, without either falling off in condition or knocking up, while horses that set out fat seldom survive. they are taught a quick walk, a light trot, or a sort of amble, which carries the rider on easily, at the rate of six miles an hour; but they will also go at a round canter, or gallop, for forty or fifty miles, without ever drawing bridle or showing the least symptom of fatigue. their _yaboos_, or galloways, and large ponies are fully as remarkable, if not superior, to their horses, in their power of sustaining fatigue; they are stout, compact, spirited beasts, without the fine blood of the larger breeds, but more within the reach of the poorer classes, and consequently used in by far greater numbers than the superior and more expensive horses. "it is a common practice of the turcomans to teach their horses to fight with their heels, and thus assist their masters in the time of action. at the will of their riders they will run at and lay hold with their teeth of whatever man or animal may be before them. this acquirement is useful in the day of battle and plunder, for catching prisoners and stray cattle, but it at the same time renders them vicious and dangerous to be handled." in addition to the flocks and herds, the turcomans possess a breed of very large fierce dogs, to assist them in keeping their cattle. these are also necessary as watch-dogs, to protect the camp from thieves as well as more dangerous enemies to their peace; and so well-trained are those faithful creatures, that it would be impossible for either friend or enemy to approach a turcoman camp without the inmates being forewarned in time. two or three of these dogs may always be seen lying by the entrance of each tent; and throughout the night several others keep sentry at the approaches to the camp. other breeds of dogs owned by them are used for hunting,--for these wild wanderers sometimes devote their hours to the chase. they have two sorts,--a smooth-skinned dog, half hound half pointer, that hunts chiefly by the scent; and a greyhound, of great swiftness, with a coat of long, silky hair, which they make use of in coursing,--hares and antelopes being their game. they have a mode of hunting--also practised by the persians--which is peculiar. it should rather be termed hawking than hunting, as a hawk is employed for the purpose. it is a species of falcon denominated "goork," and is trained not only to dash at small game, such as partridges and bustards, but upon antelopes and even the wild ass that is found in plenty upon the plains of turcomania. you will wonder how a bird, not larger than the common falcon, could capture such game as this but it will appear simple enough when the method has been explained. the "goork" is trained to fly at the quadruped, and fix its claws in one particular place,--that is, upon the frontlet, just between the eyes. when thus attached, the bird, instead of closing its wings and remaining at rest, keeps them constantly in motion, flapping them over the eyes of the quadruped. this it does, no doubt, to enable it to retain its perch; while the unfortunate animal, thus assailed, knows not in what direction to run, and is soon overtaken by the pursuing sportsmen, and either speared or shot with the bow and arrow. wild boars are frequently hunted by the turcomans; and this, like everything else with these rude centaurs, is performed on horseback. the bow and arrow is but a poor weapon when employed against the thick, tough hide of the hyrcanian boar (for he is literally the hyrcanian boar), and of course the matchlock would be equally ineffective. how, then, does the turcoman sportsman manage to bag this bristly game? with all the ease in the world. it costs him only the effort of galloping his horse close up to the side of the boar after he has been brought to by the dogs, and then suddenly wheeling the steed. the latter, well-trained to the task, without further prompting, goes through the rest of the performance, which consists in administering to the boar such a slap with his iron-shod heel, as to prostrate the porcine quadruped, often killing it on the instant! such employments and such diversions occupy only a small portion of the turcoman's tune. he follows another calling of a far less creditable character, which unfortunately he regards as the most honourable occupation of his life. this is the calling of the robber. his pastoral pursuits are matters of only secondary consideration. he only looks to them as a means of supplying his daily wants,--his food and the more necessary portion of his clothing; but he has other wants that may be deemed luxuries. he requires to keep up his stock of horses and camels, and wishes to increase them. he needs costly gear for his horse, and costly garments for himself--and he is desirous of being possessed of fine weapons, such as spears, swords, bows, matchlocks, daggers, and pistols. his most effective weapons are the spear and sword, and these are the kinds he chiefly uses. his spear consists of a steel head with four flutes, and edges very sharp, fixed upon a slender shaft of from eight to ten feet in length. in using it he couches it under the left arm, and directs it with the right hand, either; straightforward, or to the right or left; if to the right, the butt of the shaft lies across the hinder part of the saddle; if to the left, the forepart of the spear rests on the horse's neck. the turcomans manage their horses with the left hand, but most of these are so well broken as to obey the movement of the knee, or the impulse of the body. when close to their object, they frequently grasp the spear with both hands, to give greater effect to the thrust. the horse, spurred to the full speed of a charge, in this way, offers an attack no doubt very formidable in appearance, but perhaps less really dangerous than the other, in which success depends so greatly on skill and address. the turcomans are all sufficiently dexterous with the sword, which is almost universally formed in the curved persian fashion, and very sharp; they also wear a dagger at the waist-belt. firearms are as yet little in use among them; they possess a few, taken from the travellers they have plundered, and procure a few more occasionally from the russians by the way of bokara. some use bows and arrows, but they are by no means so dexterous as their ancestors were in the handling of those weapons. mounted, then, upon his matchless steed, and armed with spear and sword, the turcoman goes forth to practise his favourite profession,--that of plunder. he does not go alone, nor with a small number of his comrades, either. the number depends altogether on the distance or danger of the expedition; and where these are considered great, a troop of five hundred, or even a thousand, usually proceed together upon their errand. you will be inquiring to what point they direct themselves,--east, west, north, or south? that altogether depends upon who may be their enemies for the time, for along with their desire for booty, there is also mixed up something like a sentiment of hostility. in this respect, however, the turcoman is a true ishmaelite, and in lack of other victim he will not hesitate to plunder the people of a kindred race. indeed, several of the turcoman tribes have long been at war with one another; and their animosity is quite as deadly among themselves as when directed against strangers to their race. the _butt_, however, of most of the turcoman expeditions is the northern part of persia,--korassan in particular. it is into this province that most of their great forays are directed, either against the peaceful citizens of the persian towns and villages, or as often against the merchant caravans that are constantly passing between teheran and the cities of the east,--mushed, balkh, bokara, herat, and kelat. i have already stated that these forays are pushed far into the interior of persia; and the fact of persia permitting such a state of things to continue will perhaps surprise you; but you would not be surprised were you better acquainted with the condition of that kingdom. from historic associations, you believe persia to be a powerful nation; and so it once was, both powerful and prosperous. that day is past; and at the present hour, this decaying monarchy is not only powerless to maintain order within its own borders, but is even threatened with annihilation from those very nomad races that have so often given laws to the great empires of asia. even at this moment, the more powerful tartar khans turn a longing look towards the tottering throne of nadir shah; and he of khiva has more than once made a feint at invasion. but the subject is too extensive to be discussed here. it is only introduced to explain with what facility a few hundreds of turcoman robbers can enter and harass the land. we find a parallel in many other parts of the world,--old as well as new. in the latter, the northern provinces of mexico, and the southern countries of la plata and paraguay, are in just such a condition: the weak, worn-out descendants of the spanish conquerors on one side, well representing the remnants of the race of nadir shah; while, on the other, the turcoman is type enough of the red indian. the comparison, however, is not just to the latter. he, at least, is possessed of courage and prowess; while the turcoman, notwithstanding his propensities for plunder, and the bloodthirsty ferocity of his character, is as arrant a coward as ever carried lance. even the persian can cope with him, when fairly matched; and the merchant caravans,--which are usually made up of true turks, and other races possessing a little "pluck," are never attacked, unless when outnumbered in the ratio of three to one. for all this, the whole northern portion of the persian kingdom is left to the mercy of these desert-robbers. the towns and villages have each their large fortress, into which the people retire whenever the plunderers make their appearance, and there dwell till the latter have ridden away,--driving off their flocks and herds to the desert fastnesses. even the poor farmer is obliged to build a fortress in the middle of his fields, to which he may retire upon the occasion of any sudden alarm, and his labourers till the ground with their swords by their sides, and their matchlocks lying near! these field fortresses of korassan are altogether so curious, both as to construction and purpose, that we cannot pass them without a word of description. they are usually placed in some conspicuous place, at a convenient distance from all parts of the cultivated tract. they are built of mud, and raised to a height of fifteen or twenty feet, of a circular form,--bearing some resemblance to the well-known round towers of ireland. a small aperture is left open at the bottom, through which those seeking shelter may just squeeze their bodies, and this being barricaded inside, the defence is complete. from the top--which can be reached easily on the inside--the farmer and his labourers can use their matchlocks with effect; but they are never called upon to do so,--as the cowardly freebooter takes good care to give the mud tower a wide birth. he has no weapons by which he might assail it; and, moreover, he has no time for sieges: since an hour's delay might bring him into danger from the force that is fast approaching. his only thought is to keep on his course, and sweep off such cattle, or make prisoners of such people as he may chance to find unwarned and unarmed. now and then he ventures upon an attack--where there is much booty to tempt him, and but a weak force to defend it. his enemies,--the hated "kuzzilbashes," as he calls the persians,--if defeated, have no mercy to expect from him. all who resist are killed upon the spot, and often torture is the mode of their death; but if they can be made prisoners, the desert-robber prefers letting them live, as a captive is to him a more valuable consideration than the death of an enemy. his prisoner, once secured, knows tolerably well what is to follow. the first thing the turcoman does is to bind the victim's hands securely behind his back; he then puts a long halter around his neck, attaching the other end of it to the tail of his horse, and in this fashion the homeward march commences. if the poor pedestrian does not keep pace with the horse, he knows what he may expect,--to be dragged at intervals along the ground, and perhaps torn to pieces upon the rocks. with this horrid fate before his fancy, he makes efforts almost superhuman to keep pace with the troop of his inhuman captors: though well aware that they are leading him off into a hopeless bondage. at night, his feet are also tied; and, thrown down upon the earth, he is covered with a coarse "numud." do not fancy that this is done to screen him from the cold: the object is very different indeed. the numud is placed over him in order that two of his captors may sleep upon its edges--one on each side of him--thus holding him down, and frustrating any chance of escape. on arriving at the robber-camp, the captive is not kept long in suspense as to his future fate. his owner--for he is now in reality a slave-wants a new word, or a piece of silken cloth, or a camel, or some other article of luxury. that he can obtain either at khiva or bokara, in exchange for his slave; and therefore the new captive--or captives, as the chance may be--is marched off to the ready market. this is no isolated nor rare incident. it is one of everyday occurrence; and it is a noted fact, that of the three hundred thousand people who constitute the subjects of the khivan khan, nearly one half are persian slaves obtained from the robbers of turcomania! the political organisation of the turcomans is of the patriarchal character. from necessity they dwell in small communities that are termed "teers," the literal signification of which is "arrows,"--though for what reason they are so styled does not appear. perhaps it is on account of the rapidity of their movements: for, in hostile excursions, or moving from place to place, they proceed with a celerity that may be compared to arrows. over each tribe or teer there is a chief, similar to the "sheik" of the arab tribes,--and indeed, many of their customs offer a close analogy to those of the wandering bedouins of arabia and egypt, and the kabyles of morocco and the algerine provinces. the circumstances of life--almost alike to both--could not fail to produce many striking resemblances. the turcoman tribes, as already observed, frequently go to war with each other, but they oftener unite to rob the common enemy,--the caravan or the persian village. in these mere plundering expeditions they go in such numbers as the case may require; but when called forth to take side in anything like a national war, they can muster to the strength of many thousands; and then indeed, they become terrible,--even to the most potent sovereigns of central asia, by whom much diplomacy is employed to enlist them on one side or the other. it matters little to them what the cause be,--he who can promise them the largest booty in cattle or slaves is sure to have the help of their spears and swords. the turcomans are not pagans,--that is, they are not professedly so,-though, for all the regard which they pay to religious observances, they might as well be termed true infidels. they profess a religion, however, and that is mohametanism in its worst and most bigoted form,-the "sunnite." the persians, as is well-known, hold the milder sheean doctrines; and as the votaries of the two, in most countries where both are practised, cordially hate each other, so it is between turcomans and persians. the former even scorn the persian creed, calling its followers "infidel" dogs, or _kuzzilbashes_; and this bigoted rancour gives them a sort of plausible excuse for the hostile attitude which they hold towards them. taking them upon the whole, the turcomans may be looked upon as true savages,--savages dressed in _silk_ instead of in _skins_. chapter ten. the ottomacs, or dirt-eaters. on the banks of the orinoco, a short distance above the point where that mighty river makes its second great sweep to the eastward, dwells a remarkable people,--a tribe of savages that, even among savages, are remarkable for many peculiar and singular customs. these are the _ottomacs_. they have been long known,--and by the narratives of the early spanish missionaries, rendered notorious,--on account of some curious habits; but although the missionaries have resided among them, and endeavoured to bring them within "sound of the bell," their efforts have met with a very partial and temporary success; and at this present hour, the ottomacs are as savage in their habits; and as singular in their customs, as they were in the days of columbus. the ottomacs are neither a stunted nor yet a weak race of men. their bodies are strong, and their arms and limbs stout and muscular; but they are remarkably ill-featured, with an expression of countenance habitually stern and vindictive. their costume is easily described, or rather cannot be _described_ at all, since they have none. both, sexes go entirely naked,--if we except a little belt of three or four inches in width, made from cotton or the bark of trees, and called the _guayuco_, which they wear around the waist,--but even this is worn from no motives of modesty. what they regard in the light of a costume is a coat of paint, and about this they are as nice and particular as a parisian dandy. talk about "blooming up" a faded _belle_ for the ballroom, or the time spent by an exquisite in adjusting the tie of his cravat! these are trifles when compared with the lengthy and elaborate toilette of an ottomac lady or gentleman. the greater part of a day is often spent by them in a single dressing, with one or two helpers to assist in the operation; and this is not a _tattooing_ process, intended to last for a lifetime, but a costume certain to be disfigured, or entirely washed off, at the first exposure to a heavy shower of rain. add to this, that the pigments which are used for the purpose are by no means easily obtained: the vegetable substances which furnish them are scarce in the ottomac country; and it costs one of these indians the produce of several days of his labour to purchase sufficient paint to give his whole skin a single "coat." for this reason the ottomac paints his body only on grand occasions,-contenting himself at ordinary times with merely staining his face and hair. when an ottomac wishes to appear in "full dress" he first gives himself a "priming" of red. this consists of the dye called "annotto," which is obtained from the fruit pulp of the _bixa orellana_, and which the indians knew how to prepare previous to their intercourse with europeans. over this red ground is then formed a lattice-work of lines of black, with a dot in the centre of every little square or diamond. the black dye is the "caruto," also a vegetable pigment, obtained from the _genipa americana_. if the gentleman be rich enough to possess a little "chica" which is a beautiful lake-coloured red,--also the produce of a plant,--the _bignoni, chica_, he will then feel all the ecstatic delight of a fashionable dandy who possesses a good wardrobe; and, with half a pound of turtle-oil rubbed into his long black tresses, he will regard himself as dressed "within an inch of his life." it is not always, however, that he can afford the _chica_,--for it is one of the costliest materials of which a south-american savage can manufacture his suit. the ottomac takes far less trouble in the building of his house. very often he builds none; but when he wishes to guard his body from the rays of the sun, or the periodical rains, he constructs him a slight edifice--a mere hut--out of saplings or bamboos, with a thatch of palm-leaves. his arms consist of the universal bow and arrows, which he manages with much dexterity; and he has also a harpoon which he employs in killing the manatee and the alligator. he has, besides, several other weapons, to aid him in the chase and fishing,--the latter of which forms his principal employment as well as his chief source of subsistence. the ottomac belongs to one of those tribes of indians termed by the spanish missionaries _indios andantes_, that is "wandering," or "vagabond indians," who instead of remaining in fixed and permanent villages, roam about from place to place, as necessity or inclination dictates. perhaps this arises from the peculiarity of the country which they inhabit: for the _indios andantes_ do not live in the thick forests, but upon vast treeless savannas, which stretch along the orinoco above its great bend. in these tracts the "juvia" trees (_bertholletia_ and _lecythys_), which produce the delicious "brazil-nuts"--and other plants that supply the savage spontaneously with food, are sparsely found; and as the savannas are annually inundated for several months, the ottomac is forced, whether he will or no, to shift his quarters and try for subsistence elsewhere. when the inundations have subsided and the waters become settled enough to permit of fishing, the ottomac "winter" is over, and he can obtain food in plenty from the alligators, the manatees, the turtles, the _toninas_ or dolphins, and other large fish that frequent the great stream upon which he dwells. of these the _manatee_ is the most important in the eyes of the ottomac--as it is the largest in size, and consequently furnishes him with the greatest amount of meat. this singular semi-cetaceous creature is almost too well-known to require description. it is found in nearly all the large rivers of tropical america, where it feeds upon the grass and aquatic plants growing along their banks. it is known by various names, according to the place and people. the spaniards call it _vaca marina_, or "sea-cow," and the portuguese _peixe hoi_, or "fish-ox,"--both being appellations equally inappropriate, and having their origin in a slight resemblance which there exists between the animal's "countenance" and that of an ox. the _west indian_ name is the one we though the true orthography is _manati_, not _manatee_, since the word is of indian origin. some writers deny this, alleging that it is a derivative from the spanish word "mano," a hand, signifying, therefore, the fish with hands,--in allusion to the rudimentary hands which form one of its distinguishing characteristics. this is the account of the historian oviedo, but another spanish missionary, father gili, offers a more correct explanation of the name,--in fact, he proves, what is neither more nor less than the simple truth, that "manati" was the name given to this animal by the natives of hayti and cuba,--where a species is also found,--and the word has no reference whatever to the "hands" of the creature. the resemblance to the spanish word which should signify "handed," is merely an accidental circumstance; and, as the acute humboldt very justly remarks, according to the genius of the spanish language, the word thus applied would have been written _manudo_, or _manon_, and not _manati_. the indians have almost as many different names for this creature as there are rivers in which it is found; but its appellation in the "lingo ageral" of the great amazon valley, is "juarua." among the ottomacs it is called the "apoia." it may be safely affirmed that there are several species of this amphibious animal in the rivers of tropical america; and possibly no one of them is identical with that of the west indies. all have hitherto been regarded as belonging to the same species, and described under the scientific title of _manatus americanus_--a name given to the american manati, to distinguish it from the "lamantin" of africa, and the "dugong" of the east-indian seas. but the west-indian species appears to have certain characteristic differences, which shows that it is a separate one, or, at all events, a variety. it is of much larger size than those of the south-american rivers generally are-though there also a large variety is found, but much rarer than those commonly captured by the fishermen. the west-indian manati has nails well developed upon the outer edge of its fins, or forearms; while those on the other kinds are either not seen at all, or only in a very rudimentary state. that there are different species, may be deduced from the accounts of the natives, who employ themselves in its capture: and the observations of such people are usually more trustworthy than the speculations of learned anatomists. the amazon fishermen all agree in the belief that there are three kinds of manati in the amazon and its numerous tributaries, that not only differ greatly in size--from seven to twenty feet long--and in weight, from four hundred to two thousand pounds,--but also in the colour of their skin, and the shape of their tails and fins. the species found in the orinoco, and called "apoia" by the ottomacs, is usually about twelve feet in length, and weighs from five hundred to eight hundred pounds; but now and then a much larger individual is captured, perhaps owing to greater age, or other accidental circumstance. humboldt heard of one that weighed eight thousand pounds; and the french naturalist d'orbigny speaks of one killed in the bolivian waters of the amazon that was twenty feet in length. this size is often attained by the _manatus americanus_ of cuba and hayti. the manati is shaped somewhat like a large seal, and has certain resemblances to a fish. its body is of an oval oblong, with a large, flat, rounded tail, set horizontally, and which serves as a rudder to direct its course in the water. just behind its shoulders appear, instead of fins, a pair of flippers, which have a certain resemblance to hands set on to the body without arms. of these it avails itself, when creeping out against the bank, and the female also uses them in carrying her young. the mammae (for it must be remembered that this creature is a mammiferous animal) are placed just below and behind the flippers. the muzzle is blunt, with thick lips,--the upper projecting several inches beyond the lower, and covered with a delicate epidermis: showing evidently that it avails itself of this prominence--which possesses a keen sense of touch--just as the elephant of his proboscis. the lips are covered with bristles, or beard, which impart a kind of human-like expression to the animal's countenance,--a circumstance more observable in the "dugongs" of the oriental waters. "woman fish," too, these have been called, and no doubt such creatures, along with the seals and walruses, have given rise to many a story of sirens and mermaids. the "cow-face," however, from which the manati obtains its spanish and portuguese epithets, is the most characteristic; and in its food we find a still greater analogy to the bovine quadruped with which it is brought in comparison. beyond this the resemblance ceases. the body is that of a seal; but instead of being covered with hair, as the cetaceous animal, the manati has a smooth skin that resembles india-rubber more than anything else. a few short hairs are set here and there, but they are scarce observable. the colour of the manati is that of lead, with a few mottlings of a pinkish-white hue upon the belly; but in this respect there is no uniformity. some are seen with the whole under-parts of a uniform cream colour. the lungs of this animal present a peculiarity worthy of being noted. they are very voluminous,--being sometimes three feet in length, and of such a porous and elastic nature as to be capable of immense extension. when blown out, they present the appearance of great swimming bladders; and it is by means of this capacity for containing air that the manati is enabled to remain so long under water,--though, like the true _cetaceae_, it requires to come at intervals to the surface to obtain breath. the flesh of the manati is eaten by all the tribes of indians who can procure it,--though by some it is more highly esteemed than by others. it was once much relished in the colonial settlements of guiana and the west indies, and formed a considerable article of commerce; but in these quarters manatis have grown scarce,--from the incessant persecution of the fishermen. the flesh has been deemed unwholesome by some, and apt to produce fevers; but this is not the general opinion. it has a greater resemblance to pork than beef,--though it be the flesh of a cow,--and is very savoury when fresh, though neither is it bad eating when salted or dried in the sun. in this way it will keep for several months; and it has always been a stock article with the monks of the south-american missions,--who, in spite of its mammiferous character, find it convenient, during the days of lent, to regard it as a fish! the skin of the manati is of exceeding thickness,--on the back an inch and a half at least, though it becomes thinner as it approaches the under-parts of the body. it is cut into slips which serve various purposes, as for shields, cordage, and whips. "these whips of manati leather," bays humboldt, "are a cruel instrument of punishment for the unhappy slaves, and even for the indians of the missions, though, according to the laws, the latter ought to be treated as freemen." another valuable commodity obtained from this animal is oil, known in the missions as manati-butter (_manteca de manati_). this is produced by the layer of pure fat, of an inch and a half in thickness, which, lying immediately under the skin, envelops the whole body of the animal. the oil is used for lamps in the mission churches; but among the indians themselves it is also employed in the _cuisine_,--as it has not that fetid smell peculiar to the oil of whales and salt-water cetaceae. the food of the manati is grass exclusively, which it finds on the banks of the lakes and rivers it frequents. of this it will eat an enormous quantity; and its usual time of browsing is at night,--though this habit may have arisen from its observance of the fact, that night is the safest time to approach the shore. in those places, where is has been left undisturbed, it may be often seen browsing by day. i have been thus particular in my account of this animal, because it is more nearly connected with the history of ottomac habits than perhaps that of any other tribe of south-american indians,--the guamos alone excepted, who may themselves be regarded as merely a branch of the ottomac family. though, as already remarked, all the tribes who dwell upon manati rivers pursue this creature and feed upon its flesh, yet in no other part of south america is this species of fishery so extensively or so dexterously carried on as among the ottomacs and guamos,--the reason being, that, amidst the great grassy savannas which characterise the ottomac country, there are numerous streams and lagoons that are the favourite haunts of this herbivorous animal. in one river in particular, so great a number are found that it has been distinguished by the appellation of the _rio de manatis_ (river of manatis). the manati, when undisturbed, is gregarious in its habits, going in troops (or "herds," if we preserve the analogy) of greater or less numbers, and keeping the young "calves" in the centre, which the mothers guard with the tenderest affection. so attached are the parents to their young, that if the calf be taken, the mother can be easily approached; and the devotion is reciprocated on the filial side; since in cases where the mother has been captured and dragged ashore, the young one has often been known to follow the lifeless body up to the very bank! as the manati plays such an important part in the domestic economy of the ottomacs, of course the capturing of this animal is carried on upon the grandest scale among these people, and, like the "harvest of turtle-eggs," hereafter to be described, the manati fishery has its particular _season_. some writers have erroneously stated this season as being the period of inundation, and when the water is at its maximum height. this is quite contrary to the truth; since that period, both on the amazon and orinoco rivers, is just the time when all kinds of fishing is difficult and precarious. then is the true winter,--the "blue months" of the south-american river indians; and it is then, as will presently be seen, that the ottomac comes nearest the point of starvation,--which he approaches every year of his life. there are manati and other kinds of fish taken at all times of the year; but the true season of the manati-fishing is when the waters of the great flood have considerably subsided, and are still continuing to diminish rapidly. when the inundation is at its height, the manati passes out of the channel current of the great river, and in search of grass it finds its way into the lakes and surrounding marshes, remaining there to browse along their banks. when the flood is rapidly passing away from it, it begins to find itself a "little out of its element," and just then is the time when it is most easily captured. sometimes the indians assemble in a body with their canoes, forming a large fleet; and, proceeding to the best haunts of the "cow-fish," carry on the fishery in a wholesale manner. the monks of the missions also head the _tame_ tribes on these expeditions,--as they do when collecting the eggs of the turtle,--and a regular systematic course is carried on under the eye of discipline and authority. a camp is formed at some convenient place on the shore. scaffolds are erected for sun-drying the flesh and skins; and vessels and other utensils brought upon the ground to render the fat into oil. the manatis that have been captured are all brought in the canoes to this central point, and delivered up to be "_flensed_," cured, and cooked. there is the usual assemblage of small traders from angostura and other ports on the lower orinoco, who come to barter their indian trinkets for the _manteca de manati_ in the same manner as it will presently be seen they trade for the _manteca de tortugas_. i need not add that this is a season of joy and festivity, like the wine-gatherings and harvest-homes of the european peasantry. the mode of capturing the manati is very similar to that employed by the esquimaux in taking the seal, and which has been elsewhere described. there is not much danger in the fishery, for no creature could be more harmless and inoffensive than this. it makes not the slightest attempt either at defence or retaliation,--though the accident sometimes occurs of a canoe being swamped or drawn under water,--but this is nothing to the ottomac indian, who is almost as amphibious as the manati itself. at the proper hour the fisherman starts off in search of the manati. his fishing-boat is a canoe hollowed from a single trunk, of that kind usually styled a "dugout." on perceiving the cow-fish resting upon the surface of the water, the ottomac paddles towards it, observing the greatest caution; for although the organs of sight and hearing in this animal are, externally, but very little developed, it both hears and sees well; and the slightest suspicious noise would be a signal for it to dive under, and of course escape. when near enough to insure a good aim, the ottomac hurls his harpoon into the animal's body; which, after piercing the thick hide, sticks fast. to this harpoon a cord is attached, with a float, and the float remaining above water indicates the direction in which the wounded animal now endeavours to get off. when it is tired of struggling, the indian regains the cord; and taking it in, hand over hand, draws up his canoe to the side of the fish. if it be still too lively, he repeatedly strikes it with a spear; but he does not aim to kill it outright until he has got it "aboard." once there, he ends the creature's existence by driving a wooden plug into its nostrils, which in a moment deprives it of life. the ottomac now prepares himself to transport the carcass to his home; or, if fishing in company, to the common rendezvous. perhaps he has some distance to take it, and against a current; and he finds it inconvenient to tow such a heavy and cumbrous article. to remedy this inconvenience, he adopts the expedient already mentioned, of placing the carcass in his canoe. but how does he get it there? how can a single indian of ordinary strength raise a weight of a thousand pounds out of the water, and lift it over the gunwale of his unsteady craft? it is in this that he exhibits great cunning and address: for instead of raising the carcass above the canoe, he sinks the canoe below the carcass, by first filling the vessel nearly full of water; and then, after he has got his freight aboard, he bales out the water with his gourd-shell. he at length succeeds in adjusting his load, and then paddles homeward with his prize. on arriving at his village,--if it be to the village he takes it,--he is assisted in transporting the load by others of his tribe; but he does not carry it to his own house,--for the ottomacs are true socialists, and the produce both of the chase and the fishery is the common property of all. the chief of the village, seated in front of his hut, receives all that is brought home, and distributes it out to the various heads of families,--giving to each in proportion to the number of mouths that are to be fed. the manati is flayed,--its thick hide, as already observed, serving for many useful purposes; the strata of fat, or "blubber," which lies beneath is removed, to be converted into oil; and finally, the flesh, which is esteemed equal to pork, both in delicacy and flavour, is cut into thin slices, either to be broiled and eaten at the time, or to be preserved for a future occasion, not by salt, of which the ottomac is entirely ignorant, but by drying in the sun and smoking over a slow fire. fish and the flesh of the alligator are similarly "cured;" and when the process is carefully done, both will keep for months. the alligator is captured in various ways: sometimes by a baited hook with a strong cord attached,--sometimes he is killed by a stab of the harpoon spear, and not unfrequently is he taken by a noose slipped over his paw, the ottomac diving fearlessly under him and adjusting the snare. some of the indian tribes will not eat the musky flesh of the alligator; but the ottomacs are not thus particular. indeed, these people refuse scarce any article of food, however nasty or disagreeable; and it is a saying among their neighbours--the indians of other tribes--that "nothing is too loathsome for the stomach of an ottomac." perhaps the saying will be considered as perfectly true when we come to describe a species of food which these people eat, and which, for a long time, has rendered them famous--or rather infamous--under the appellation of "dirt-eaters." of them it may literally be said that they "eat dirt," for such, in reality, is one of their customs. this singular practice is chiefly resorted to during those months in the year when the rivers swell to their greatest height, and continue full. at this time all fishing ceases, and the ottomac finds it difficult to obtain a sufficiency of food. to make up for the deficiency, he fills his stomach with a kind of unctuous clay, which he has already stored up for the emergency, and of which he eats about a pound per diem! it does not constitute his sole diet, but often for several days together it is the only food which passes his lips! there is nothing nourishing in it,--that has been proved by analysis. it merely _fills_ the belly,-producing a satiety, or, at least, giving some sort of relief from the pangs of hunger. nor has it been observed that the ottomac grows thin or unhealthy on this unnatural viand: on the contrary, he is one of the most robust and healthy of american indians. the earth which the ottomac eats goes by the name of _poya_. he does not eat clay of every kind: only a peculiar sort which he finds upon the banks of streams. it is soft and smooth to the touch, and unctuous, like putty. in its natural state it is of a yellowish-grey colour; but, when hardened before the fire, it assumes a tinge of red, owing to the oxide of iron which is in it. it was for a long time believed that the ottomac mixed this clay with cassava and turtle-oil, or some other sort of nutritive substance. even father gumilla--who was credulous enough to believe almost anything-could not "swallow" the story of the clay in its natural state, but believed that it was prepared with some combination of farinha or fat. this, however, is not the case. it is a pure earth, containing (according to the analysis of vauquelin) silex and alumina, with three or four per cent of lime! this clay the ottomac stores up, forming it into balls of several inches in diameter; which; being slightly hardened before the fire, he builds into little pyramids, just as cannon-balls are piled in an arsenal or fortress. when the ottomac wishes to eat of the _poya_, he softens one of the balls by wetting it; and then, scraping off as much as he may require for his meal, returns the _poya_ to its place on the pyramid. the dirt-eating does not entirely end with the falling of the waters. the practice has begot a craving for it; and the ottomac is not contented without a little _poya_, even when more nutritious food may be obtained in abundance. this habit of eating earth is not exclusively ottomac. other kindred tribes indulge in it, though not to so great an extent; and we find the same unnatural practice among the savages of new caledonia and the indian archipelago. it is also common on the west coast of africa. humboldt believed it to be exclusively a tropical habit. in this the great philosopher was in error, since it is known to be practised by some tribes of northern indians on the frigid banks of the mackenzie river. when the floods subside, as already stated, the ottomac lives better. then he can obtain both fish and turtles in abundance. the former he captures, both with hooks and nets, or shoots with his arrows, when they rise near the surface. the turtles of the ottomac rivers are of two kinds the _arau_ and _terecay_. the former is the one most sought after, as being by far the largest. it is nearly a yard across the back, and weighs from fifty to a hundred pounds. it is a shy creature, and would be difficult to capture, were it not for a habit it has of raising its head above the surface of the water, and thus exposing the soft part of its throat to the indian's arrow. even then an arrow might fail to kill it; but the ottomac takes care to have the point well coated with _curare_ poison, which in a few seconds does its work, and secures the death of the victim. the _terecay_ is taken in a different and still more ingenious manner. this species, floating along the surface, or even when lying still, presents no mark at which a shaft can be aimed with the slightest chance of success. the sharpest arrow would glance off its flat shelly back as from a surface of steel. in order, therefore, to reach the vitals of his victim, the indian adopts an expedient, in which he exhibits a dexterity and skill that are truly remarkable. he aims his shaft, not at the turtle, but up into the air, describing by its course a parabolic curve, and so calculating its velocity and direction that it will drop perpendicularly, point foremost, upon the back of the unsuspecting swimmer, and pierce through the shell right into the vital veins of its body! it is rare that an indian will fail in hitting such a mark; and, both on the orinoco and amazon, thousands of turtles are obtained in this manner. the great season of ottomac festivity and rejoicing, however, is that of the _cosecha de tortugas_, or "turtle-crop." as has been already observed, in relation to the manati fishery, it is to him what the harvest-home is to the nations of northern europe, or the wine-gathering to those of the south; for this is more truly the character of the _cosecha_. it is then that he is enabled, not only to procure a supply of turtle-oil with which to lubricate his hair and skin, but he obtains enough of this delicious grease wherewith to fry his dried slices of manati and a surplus for sale to the turtle-traders from the lower orinoco. in this petty commerce no coin is required; harpoon spears, and arrow-heads of iron, rude knives, and hatchets; but, above all, a few cakes of _annotto_, _chica_, and _caruto_, are bartered in exchange for the turtle-oil. the thick hide of the manati,--for making slave-whips,--the spotted skin of the jaguar, and some other pelts which the chase produces, are also items of his export trade. the pigments above mentioned have already been procured by the trader, as the _export_ articles of commerce of some other tribe. the turtle-oil is the product of the eggs of the larger species,--the _arau_,--known simply by the name _tortuga_, or turtle. the eggs of the _terecay_ would serve equally as well; but, from a difference in the habit of this animal, its eggs cannot be obtained in sufficient quantity for oil-making. there is no such thing as a grand "cosecha," or crop of them--for the creature is not gregarious, like its congener, but each female makes her nest apart from the others, in some solitary place, and there brings forth her young brood. not but that the nests of the _terecay_ are also found and despoiled of their eggs,--but this only occurs at intervals; and as the contents of a single nest would not be sufficient for a "churning," no "butter" can be made of them. they are, therefore, gathered to be used only as _eggs_, and not as _butter_. the _arau_, on the other hand, although not gregarious under ordinary circumstances, becomes pre-eminently so during the "laying season." then all the turtles in the orinoco and its tributaries collect into three or four vast gangs--numbering in all over a million of individuals--and proceed to certain points of rendezvous which they have been in the habit of visiting from time immemorial. these common breeding-places are situated between the cataracts of the river and the great bend, where it meets the apure; and are simply broad beaches of sand, rising with a gentle slope from the edge of the water, and extending for miles along the bank. there are some small rookeries on tributary streams, but the three most noted are upon the shores of the main river, between the points already indicated. that frequented by the ottomacs is upon an island, at the mouth of the uruana river, upon which these people principally dwell. the laying season of the _arau_ turtle varies in the different rivers of tropical america,--occurring in the amazon and its tributaries at a different period from that of the orinoco. it is regulated by the rise, or rather the fall of the inundations; and takes place when the waters, at their lowest stage, have laid bare the low sand-banks upon the shores. this occurs (in the orinoco) in march, and early in this month the great assemblages are complete. for weeks before, the turtles are seen, in all parts of the river near the intended breeding-places, swimming about on the surface, or basking along the banks. as the sun grows stronger, the desire of depositing their eggs increases,--as though the heat had something to do with their fecundation. for some time before the final action, the creatures may be seen ranged in a long line in front of the breeding-place, with their heads and necks held high above the water; as if contemplating their intended nursery, and calculating the dangers to which they may be exposed. it is not without reason that they may dwell upon these. along the beach stalks the lordly jaguar, waiting to make a meal of the first that may set his foot on terra firma, or to fill his stomach with the delicious "new-laid" eggs. the ugly alligator, too, is equally _friand_ of a gigantic omelette; and not less so the "garzas" (white cranes), and the "zamuros" (black vultures), who hover in hundreds in the air. here and there, too, may be observed an indian sentinel, keeping as much as possible out of sight of the turtles themselves, but endeavouring to drive off all other enemies whose presence may give them fear. should a canoe or boat appear upon the river, it is warned by these sentinels to keep well off from the phalanx of the turtles,--lest these should be disturbed or alarmed,--for the indian well knows that if anything should occur to produce a panic among the araus, his _cosecha_ would be very much shortened thereby. when at length the turtles have had sun enough to warm them to the work, they crawl out upon the dry sand-beach, and the laying commences. it is at night that the operation is carried on: for then their numerous enemies--especially the vultures--are less active. each turtle scoops out a hole, of nearly a yard in diameter and depth; and having therein deposited from fifty to one hundred eggs, it covers them up with the sand, smoothing the surface, and treading it firmly down. sometimes the individuals are so crowded as to lay in one another's nests, breaking many of the eggs, and causing an inextricable confusion; while the creaking noise of their shells rubbing against each other may be heard afar off, like the rushing of a cataract. sometimes a number that have arrived late, or have been slow at their work, continue engaged in it till after daybreak, and even after the indians have come upon the ground--whose presence they no longer regard. impelled by the instinct of philo-progenitiveness, these "mad turtles," as the indians call them, appear utterly regardless of danger, and make no effort to escape from it; but are turned over on their backs, or killed upon the spot without difficulty. the beach being now deserted by the turtles, the egg-gatherers proceed to their work. as there are usually several tribes, who claim a share in the _cosecha_, the ground is measured out, and partitioned among them. the regularity with which the nests are placed, and the number of eggs in each being pretty nearly the same, an average estimate of the quantity under a given surface is easily made. by means of a pointed stick thrust into the sand, the outline of the deposit is ascertained-usually running along the beach in a strip of about thirty yards in breadth. when the allotments are determined, the work of oil-making begins,--each tribe working by itself, and upon the social system. the covering of sand is removed, and the eggs placed in baskets, which are then emptied into large wooden troughs, as a common receptacle. the canoes, drawn up on the sand, are frequently made to do duty as troughs. when a sufficient number of eggs have been thrown in, they are broken and pounded together, and whipped about, as if intended for a gigantic omelette. water is added; and then the mixture is put into large caldrons, and boiled until the oil comes to the top; after which it is carefully skimmed off and poured into earthen jars ("botigas,") provided by the traders. it takes about two weeks to complete the operations, during which time many curious scenes occur. the sand swarms with young turtles about as big as a dollar, which have been prematurely hatched; and have contrived to crawl out of the shell. these are chased in all directions, and captured by the little naked ottomacs, who devour them "body, bones, and all," with as much gusto as if they were gooseberries. the cranes and vultures, and young alligators too, take a part in this by-play--for the offspring of the poor arau has no end of enemies. when the oil is all boiled and bottled, the trader displays his tempting wares, and makes the best market he can; and the savage returns to his palm-hut village,--taking with him the articles of exchange and a few baskets of eggs, which he has reserved for his own eating; and so ends the _cosecha de tortugas_. it is in this season that the ottomac indulges most in good living, and eats the smallest quantity of dirt. the waters afford him abundance of fish and turtle-flesh, beef from the sea-cow, and steaks from the tail of the alligator. he has his turtle and manati-butter, in which to fry all these dainties, and also to lubricate his hair and skin. he can dress, too, "within an inch of his life," having obtained for his oil a fresh supply of the precious pigments. he indulges, moreover, in fits of intoxication, caused by a beverage made from maize or manioc root; but oftener produced by a species of snuff which he inhales into his nostrils. this is the _niopo_, manufactured from the leaves of a _mimosa_, and mixed with a kind of lime, which last is obtained by burning a shell of the genus _helix_, that is found in the waters of the orinoco. the effect of the _niopo_ resembles that produced by chewing _betel_, tobacco, opium, or the narcotic _coca_ of peru. when freely taken, a species of intoxication or rather mania is produced; but this snuff and its effects are more minutely described elsewhere. it is here introduced because, in the case of the ottomac, the drug often produces most baneful consequences. during the continuance of his intoxication the ottomac is quarrelsome and disorderly. he picks a hole in the coat of his neighbour; but if there chance to be any "old sore" between him and a rival, the vindictive feeling is sure to exhibit itself on these occasions; and not unfrequently ends in an encounter, causing the death of one or both of the combatants. these duels are not fought either with swords or pistols, knives, clubs, nor any similar weapons. the destruction of the victim is brought about in a very different manner; and is the result of a very slight scratch which he has received during the fight from the _nail_ of his antagonist. that a wound of so trifling a nature should prove mortal would be something _very_ mysterious, did we not know that the nail which inflicted that scratch has been already enfiltrated with _curare_,--one of the deadliest of vegetable poisons, which the ottomac understands how to prepare in its most potent and virulent form. should it ever be your unfortunate fate therefore, to get into a "scrimmage" with an ottomac indian, you must remember to keep clear of his "claws!" chapter eleven. the comanches, or prairie indians. young reader, i need scarce tell you that the noblest of animals--the horse--is not indigenous to america. you already know that when columbus discovered the new world, no animal of the horse kind was found there; and yet the geologist has proved incontestably that at one time horses existed in the new world,--at a period too, geologically speaking, not very remote. the fossilised bones examined by one of the most accomplished of modern travellers--dr darwin--establish this truth beyond a doubt. the horse that at present inhabits america, though not indigenous, has proved a flourishing exotic. not only in a domestic state has he increased in numbers, but he has in many places escaped from the control of man, and now runs wild upon the great plains both of north and south america. although you may find in america almost every "breed" of horses known in europe, yet the great majority belong to two very distinct kinds. the first of these is the large english horse, in his different varieties, imported by the anglo-americans, and existing almost exclusively in the woodland territory of the united states. the second kind is the andalusian-arab,--the horse of the spanish conquerors,--a much smaller breed than the english-arabian, but quite equal to him in mettle and beauty of form. it is the andalusian horse that is found throughout all spanish america,--it is he that has multiplied to such a wonderful extent,--it is he that has "run wild." that the horse in his normal state is a dweller upon open plains, is proved by his habits in america,--for in no part where the forest predominates is he found wild,--only upon the prairies of the north, and the llanos and pampas of the south, where a timbered tract forms the exception. he must have found these great steppes congenial to his natural disposition,--since, only a very short time after the arrival of the spaniards in the new world, we find the horse a runaway from civilisation,--not only existing in a wild state upon the prairies, but in possession of many of the indian tribes. it would be an interesting inquiry to trace the change of habits which the possession of the horse must have occasioned among these arabs of the western world. however hostile they may have been to his european rider, they must have welcomed the horse as a friend. no doubt they admired the bold, free spirit of the noble animal so analogous to their own nature. he and they soon became inseparable companions; and have continued so from that time to the present hour. certain it is that the prairie, or "horse indians" of the present day, are in many respects essentially different from the staid and stoical sons of the forest so often depicted in romances; and almost equally certain is it, that the possession of the horse has contributed much to this dissimilarity. it could not be otherwise. with the horse new habits were introduced,--new manners and customs,--new modes of thought and action. not only the chase, but war itself, became a changed game,--to be played in an entirely different manner. we shall not go back to inquire what these indians _were_ when afoot. it is our purpose only to describe what they _are_ now that they are on horseback. literally, may we say _on horseback_; for, unless at this present writing they are asleep, we may safely take it for granted they are upon the backs of their horses,--young and old of them, rich and poor,--for there is none of them so poor as not to be the master of a "mustang" steed. in "prairie-land" every tribe of indians is in possession of the horse. on the north the crees, crows, and blackfeet, the sioux, cheyennes, and arapahoes; on the plains of the platte, the kansas, and osage, we find the pawnees, the kansas, and osages,--all horse indians. west of the great mountain range, the apache is mounted: so likewise the utah, the navajo, and the snake, or shoshonee,--the latter rather sparingly. other tribes, to a greater or less degree, possess this valuable animal; but the true type of the "horse indian" is to be found in the comanche, the lord of that wide domain that extends from the arkansas to the rio grande. he it is who gives trouble to the frontier colonists of texas, and equally harasses the spanish settlements of new mexico; he it is who carries his forays almost into the heart of new spain,--even to the gates of the populous durango. regarding the comanche, then, as the type of the horse indians, we shall speak more particularly of him. allowing for some slight difference in the character of his climate and country, his habits and customs will be found not very dissimilar to those of the other tribes who make the prairie their home. to say that the comanche is the finest horseman in the world would be to state what is not the fact. he is not more excellent in this accomplishment than his neighbour and bitter foeman, the pawnee,--no better than the "vaquero" of california, the "ranchero" of mexico, the "llanero" of venezuela, the "gaucho" of buenos ayres, and the horse indians of the "gran chaco" of paraguay, of the pampas, and patagonia. he is _equal_, however, to any of these, and that is saying enough,--in a word, that he takes rank among the finest horsemen in the world. the comanche is on horseback almost from the hour of infancy,-transferred, as it were, from his mother's arms to the withers of a mustang. when able to walk, he is scarce allowed to practise this natural mode of progression, but performs all his movements on the back of a horse. a comanche would no more think of making a journey afoot-even if it were only to the distance of a few hundred yards--than he would of crawling upon his hands and knees. the horse, ready saddled and bridled, stands ever near,--it differs little whether there is either saddle or bridle,--and flinging himself on the animal's back, or his neck, or his croup, or hanging suspended along his side, the indian guides him to the destined spot, usually at a rapid gallop. it is of no consequence to the rider how fast the horse may be going: it will not hinder him from mounting, or dismounting at will. at any time, by clutching the mane, he can spring upon the horse's shoulders,--just as may be often seen in the arena of the circus. the horse indian is a true type of the _nomadic_ races,--a dweller in tents, which his four-footed associate enables him to transport from place to place with the utmost facility. some of the tribes, however, and even some of the comanches, have fixed residences, or "villages," where at a certain season of the year they--or rather their women-cultivate the maize, the pumpkin, the melon, the calabash, and a few other species of plants,--all being vegetable products indigenous to their country. no doubt, before the arrival of europeans, this cultivation was carried on more extensively than at present; but the possession of the horse has enabled the prairie tribes to dispense with a calling which they cordially contemn: the calling of the husbandman. these misguided savages, one and all, regard agricultural pursuits as unworthy of men; and wherever necessity compels them to practise them, the work falls to the lot of the women and slaves,--for be it known that the comanche is a slave-owner; and holds in bondage not only indians of other tribes, but also a large number of mestizoes and whites of the spanish race, captured during many a sanguinary raid into the settlements of mexico! it would be easy to show that it is this false pride of being hunters and warriors, with its associated aversion for an agricultural life, that has thinned the numbers of the indian race--far more than any persecution they have endured at the hands of the white man. this it is that starves them, that makes unendurable neighbours of them, and has rendered it necessary in some instances to "civilise them off the face of the earth." but they are not yet all civilised from off the face of the earth; nor is it their destiny to disappear so readily as short-seeing prophets have declared. their idle habits and internecine wars have done much to thin their numbers,--far more than the white man's hostility,--but wherever the white man has stepped in and put a stop to their tribal contentions,--wherever he has succeeded in conquering their aversion to industrial pursuits,--the indian is found not only to hold his ground, but to increase rapidly in numbers. this is the case with many tribes,--greeks, choctaws, and cherokees,--so that i can promise you, young reader, that by the time you get to be an old man, there will be as many indians in the world as upon that day when columbus first set his foot upon "cat" island. you will be inquiring how the horse could render the prairie indian more independent of agriculture? the answer is simple. with this valuable auxiliary a new mode of subsistence was placed within his reach. an article of food, which he had hitherto been able to obtain only in a limited quantity, was now procurable in abundance,--the flesh of the buffalo. the prairies of north america have their own peculiarities. they are not stocked with large droves of ruminant animals, as the plains of southern africa,--where the simplest savage may easily obtain a dinner of flesh-meat. a few species of deer, thinly distributed,--all swift, shy animals,--the prong-horn antelope, still swifter and shyer,--and the "big-horn," shyest of all,--were the only ruminants of prairie-land, with the exception of the great bison, or buffalo, as he is generally called. but even this last was not so easily captured in those days. the bison, though not a swift runner, is yet more than a match for the biped man; and though the indian might steal upon the great drove, and succeed in bringing down a few with his arrows, it was not always a sure game. moreover, afoot, the hunter could not follow the buffalo in its grand migrations,--often extending for hundreds of miles across plains, rivers, and ravines. once mounted, the circumstances became changed. the indian hunter could not only overtake the buffalo, but ride round him at will, and pursue him, if need be, to the most distant parts of prairie-land. the result, therefore, of the introduction of the horse was a plentiful supply of buffalo-meat, or, when that failed, the flesh of the horse himself,--upon which two articles of diet the prairie indian has almost exclusively subsisted ever since. the comanche has several modes of hunting the buffalo. if alone, and he wishes to make a grand _coup_, he will leave his horse at a distance,-the animal being trained to remain where his master has left him. the hunter then approaches the herd with great caution, keeping to leeward,--lest he might be "winded" by the old sentinel bulls who keep watch. should there be no cover to shelter the approach of the hunter, the result would be that the bulls would discover him; and, giving out their bellow of alarm, cause the others to scamper off. to guard against this, the indian has already prepared himself by adopting a _ruse_,--which consists in disguising himself in the skin of a buffalo, horns and all complete, and approaching the herd, as if he were some stray individual that had been left behind, and was just on the way to join its fellows. even the motions of the buffalo, when browsing, are closely imitated by the red hunter; and, unless the wind be in favour of his being scented by the bulls, this device will insure the success of a shot. sometimes the skin of the large whitish-grey wolf is used in this masquerade with equal success. this may appear singular, since the animal itself is one of the deadliest enemies of the buffalo: a large pack of them hanging on the skirts of every herd, and patiently waiting for an opportunity to attack it. but as this attack is only directed against the younger calves,--or some disabled or decrepit individual who may lag behind,--the strong and healthy ones have no fear of the wolves, and permit them to squat upon the prairie within a few feet of where they are browsing! indeed, they could not hinder them, even if they wished: as the long-legged wolf in a few springs can easily get out of the way of the more clumsy ruminant; and, therefore, does not dread the lowering frontlet of the most shaggy and ill-tempered bull in the herd. of course the hunter, in the guise of a wolf, obtains the like privilege of close quarters; and, when he has arrived at the proper distance for his purpose, he prepares himself for the work of destruction. the bow is the weapon he uses,--though the rifle is now a common weapon in the hands of many of the horse indians. but the bow is preferred for the species of "still hunting" here described. the first crack of a rifle would scatter the gang, leaving the hunter perhaps only an empty gun for his pains; while an arrow at quarters is equally as deadly in its effect; and, being a _silent_ weapon, no alarm is given to any of the buffaloes, except that one which has felt the deadly shaft passing through its vitals. often the animal thus shot--even when the wound is a mortal one--does not immediately fall; but sinks gradually to the earth, as if lying down for a rest. sometimes it gets only to its knees, and dies in this attitude; at other times it remains a long while upon its legs, spreading its feet widely apart, as if to prop itself up, and then rocking from side to side like a ship in a ground-swell, till at last, weakened by loss of blood, it yields its body to the earth. sometimes the struggles of a wounded individual cause the herd to "stampede," and then the hunter has to content himself with what he may already have shot; but not unfrequently the unsuspicious gang keeps the ground till the indian has emptied his quiver. nay, longer than that: for it often occurs that the disguised buffalo or wolf (as the case may be) approaches the bodies of those that have fallen, recovers some of his arrows, and uses them a second time with like deadly effect! for this purpose it is his practice, if the aim and distance favour him, to send his shaft clear through the body of the bison, in order that the barb may not hinder it from being extracted on the other side! this feat is by no means of uncommon occurrence among the buffalo-hunters of the prairies. of course, a grand wholesale slaughter of the kind just described is not an everyday matter; and can only be accomplished when the buffaloes are in a state of comparative rest, or browsing slowly. more generally they detect the dangerous counterfeit in time to save their skins; or else keep moving too rapidly for the hunter to follow them on foot. his only resource, then, is to ride rapidly up on horseback, fire his arrows without dismounting, or strike the victim with his long lance while galloping side by side with it. if in this way he can obtain two or three fat cows, before his horse becomes _blown_, or the herd scatters beyond his reach, he considers that he has had good success. but in this kind of chase the hunter is rarely alone: the whole tribe takes part in it; and, mounted on their well-trained mustangs, often pursue the buffalo gangs for, an hour or more, before the latter can get off and hide themselves in the distance, or behind the swells of the prairie. the clouds of dust raised in a _melee_ of this kind often afford the buffalo a chance of escaping,--especially when they are running _with_ the wind. a "buffalo surround" is effected by a large party of hunters riding to a great distance; deploying themselves into a circle around the herd; and then galloping inward with loud yells. the buffaloes, thus attacked on all sides, become frightened and confused, and are easily driven into a close-packed mass, around the edges of which the mounted hunters wheel and deliver their arrows, or strike those that try to escape, with their long spears. sometimes the infuriated bulls rush upon the horses, and gore them to death; and the hunters, thus dismounted, often run a narrow risk of meeting with the same fate,--more than a risk, for not unfrequently they are killed outright. often are they obliged to leap up on the croup of a companion's horse, to get out of the way of danger; and many instances are recorded where a horseman, by the stumbling of his horse, has been pitched right into the thick of the herd, and has made his escape by mounting on the backs of the bulls themselves, and leaping from one to another until he has reached clear ground again. the buffalo is never captured in a "pound," as large mammalia are in many countries. he is too powerful a creature to be imprisoned by anything but the strongest stockade fence; and for this the prairie country does not afford materials. a contrivance, however, of a somewhat similar character is occasionally resorted to by various tribes of indians. when it is known that the buffaloes have become habituated to range in any part of the country, where the plain is intersected by deep ravines,--_canons_, or _barrancas_, as they are called,--then a grand _battue_ is got up by driving the animals pellmell over the precipitous bluffs, which universally form the sides of these singular ravines. to guide the herd to the point where it is intended they should take the fatal leap, a singular contrivance is resorted to. this consists in placing two rows of objects--which appear to the buffalo to be human beings--in such a manner that one end of each row abuts upon the edge of the precipice, not very distant from the other, while the lines extend far out into the plain, until they have diverged into a wide and extensive funnel. it is simply the contrivance used for guiding animals into a pound; but, instead of a pair of close log fences, the objects forming these rows stand at a considerable distance apart; and, as already stated, appear to the not very discriminating eye of the buffalo to be human beings. they are in reality designed to resemble the human form in a rude fashion; and the material out of which they are constructed is neither more nor less than the dung of the buffaloes themselves,--the _bois de vache_, as it is called, by the canadian trappers, who often warm their shins, and roast their buffalo ribs over a fire of this same material. the decoy being thus set, the mounted hunters next make a wide sweep around the prairie,--including in their deployment such gangs of buffaloes as may be browsing between their line and the mouth of the funnel. at first the buffaloes are merely guided forward, or driven slowly and with caution,--as boys in snow-time often drive larks toward their snares. when the animals, however, have entered between the converging lines of mock men, a rush, accompanied by hideous yells, is made upon them from behind: the result of which is, that they are impelled forward in a headlong course towards the precipice. the buffalo is, at best, but a half-blind creature. through the long, shaggy locks hanging over his frontlet he sees objects in a dubious light, or not at all. he depends more on his scent than his sight; but though he may scent a living enemy, the keenness of his organ does not warn him of the yawning chasm that opens before him,--not till it is too late to retire: for although he may perceive the fearful leap before taking it, and would willingly turn on his track, and refuse it, he finds it no longer possible to do so. in fact, he is not allowed time for reflection. the dense crowd presses from behind, and he is left no choice, except that of springing forward or suffering himself to be tumbled over upon his head. in either case it is his last leap; and, frequently, the last of a whole crowd of his companions. with such persecutions, i need hardly say that the buffaloes are becoming scarcer every year; and it is predicted that at no distant period this really valuable mammal will be altogether extinct. at present their range is greatly contracted within the wide boundaries which it formerly occupied. going west from the mississippi,--at any point below the mouth of the missouri,--you will not meet with buffalo for the first three hundred miles; and, though the herds formerly ranged to the south and west of the rio grande, the comanches on the banks of that river no longer know the buffalo, except by their excursions to the grand prairie far to the north of their country. the great slave lake is the northern terminus of the buffalo range; and westward the chain of the rocky mountains; but of late years stray herds have been observed at some points west of these,--impelled through the passes by the hunter-pressure of the horse indians from the eastward. speculators have adopted several ingenious and plausible reasons to account for the diminution of the numbers of the buffalo. there is but one cause worth assigning,--a very simple one too,--the horse. with the disappearance of the buffalo,--or perhaps with the thinning of their numbers,--the prairie indians may be induced to throw aside their roving habits. this would be a happy result both for them and their neighbours; though it is even doubtful whether it might follow from such a circumstance. no doubt some change would be effected in their mode of life; but unfortunately these bedouins of the western world can live upon the horse, even if the buffalo were entirely extirpated. even as it is, whole tribes of them subsist almost exclusively upon horse-flesh, which they esteem and relish more than any other food. but this resource would, in time, also fail them; for they have not the economy to raise a sufficient supply for the demand that would occur were the buffaloes once out of the way: since the _caballadas_ of wild mustangs are by no means so easy to capture as the "gangs" of unwieldy and lumbering buffaloes. it is to be hoped, however, that before the horse indians have been put to this trial, the strong arm of civilisation shall be extended over them, and, withholding them from those predatory incursions, which they annually make into the mexican settlements, will induce them to _dismount_, and turn peaceably to the tillage of the soil,--now so successfully practised by numerous tribes of their race, who dwell in fixed and flourishing homes upon the eastern border of the prairies. at this moment, however, the comanches are in open hostility with the settlers of the texan frontier. the _lex talionis_ is in active operation while we write, and every mail brings the account of some sanguinary massacre, or some act of terrible retaliation. the deeds of blood and savage cruelty practised alike by both sides--whites as well as indians--have had their parallel, it is true, but they are not the less revolting to read about. the colonists have suffered much from these ishmaelites of the west,--these lordly savages, who regard industry as a dishonourable calling; and who fancy that their vast territory should remain an idle hunting-ground, or rather a fortress, to which they might betake themselves during their intervals of war and plundering. the colonists have a clear title to the land,--that title acknowledged by all right-thinking men, who believe the good of the majority must not be sacrificed to the obstinacy of the individual, or the minority,--that title which gives the right to remove the dwelling of the citizen,--his very castle,--rather than that the public way be impeded. all admit this right; and just such a title has the texan colonist to the soil of the comanche. there may be guilt in the _mode_ of establishing the claim,--there may have been scenes of cruelty, and blood unnecessarily spilt,--but it is some consolation to know that there has occurred nothing yet to parallel in cold-blooded atrocity the annals of algiers, or the similar acts committed in southern africa. the crime of _smoke-murder_ is yet peculiar to pellisier and potgieter. in their present outbreak, the comanches have exhibited but a poor, short-sighted policy. they will find they have committed a grand error in mistaking the courageous colonists of texas for the weak mexicans,-with whom they have long been at war, and whom they have almost invariably conquered. the result is easily told: much blood may be shed on both sides, but it is sure to end as all such contests do; and the comanche, like the caffre, must "go to the wall." perhaps it is better that things should be brought to a climax,--it will certainly be better for the wretched remnant of the spano-americans dwelling along the comanche frontiers,--a race who for a hundred years have not known peace. as this long-standing hostility with the mexican nation has been a predominant feature in the history of the comanche indian, it is necessary to give some account of how it is usually carried on. there was a time when the spanish nation entertained the hope of _christianising_ these rude savages,--that is, taming and training them to something of the condition to which they have brought the aztec descendants of montezuma,--a condition scarce differing from slavery itself. as no gold or silver mines had been discovered in texas, it was not their intention to make mine-labourers of them; but rather peons, or field-labourers, and tenders of cattle,--precisely as they had done, and were still doing, with the tribes of california. the soldier and the sword had proved a failure,--as in many other parts of spanish america,--in fact, everywhere, except among the degenerated remnants of monarchical misrule found in mexico, bogota, and peru. in these countries was encountered the _debris_ of a declining civilisation, and not, as is generally believed, the children of a progressive development; and of course they gave way,--as the people of all corrupted monarchies must in the end. it was different with the "indios bravos," or warrior tribes, still free and independent,--the so-called _savages_. against these the soldier and the sword proved a complete failure; and it therefore became necessary to use the other kind of conquering power,--the monk and his cross. among the comanches this kind of conquest had attained a certain amount of success. mission-houses sprung up through the whole province of texas,--the comanche country,--though the new neophytes were not altogether comanches, but rather indians of other tribes who were less warlike. many comanches, however, became converts; and some of the "missiones" became establishments on a grand scale,--each having, according to spanish missionary-fashion, its "presidio," or garrison of troops, to keep the new believers within sound of the bell, and to hunt and bring them back, whenever they endeavoured to escape from that christian vassalage for which they had too rashly exchanged their pagan freedom. all went well, so long as spain was a power upon the earth, and the mexican viceroyalty was rich enough to keep the presidios stocked with troopers. the monks led as jolly a life as their prototypes of "bolton abbey in the olden time." the neophytes were simply their slaves, receiving, in exchange for the sweat of their brow, baptism, absolution, little pewter crucifixes, and various like valuable commodities. but there came a time when they grew tired of the exchange, and longed for their old life of roving freedom. their brethren had obtained the horse; and this was an additional attraction which a prairie life presented. they grew tired of the petty tricks of the christian superstition,--to their view less rational than their own,--they grew tired of the toil of constant work, the childlike chastisements inflicted, and sick of the sound of that ever-clanging clapper,--the bell. in fine, they made one desperate effort, and freed themselves forever. the grand establishment of san saba, on the river of the same name, fell first. the troops were abroad on some convert-hunting expedition. the comanches entered the fort,--their tomahawks and war-clubs hidden under their great robes of buffalo-hide: the attack commenced, and ended only with the annihilation of the settlement. one monk alone escaped the slaughter,--a man renowned for his holy zeal. he fled towards san antonio, pursued by a savage band. a large river coursed across the route it was necessary for him to take; but this did not intercept him: its waters opened for a moment, till the bottom was bare from bank to bank. he crossed without wetting his feet. the waves closed immediately behind him, offering an impassable barrier to his pursuers, who could only vent their fury in idle curses! but the monk could curse too. he had, perhaps, taken some lessons at the vatican; and, turning round, he anathematised every "mother's son" of the red-skinned savages. the wholesale excommunication produced a wonderful effect. every one of the accursed fell back where he stood, and lay face upward upon the plain, dead as a post! the monk, after baptising the river "brazos de dios" (arm of god), continued his flight, and reached san antonio in safety,--where he duly detailed his miraculous adventure to the credulous converts of bejar, and the other missions. such is the supposed origin of the name brazos de dios, which the second river in texas bears to this day. it is to be remarked, however, that the river crossed by the monk was the present colorado, not the brazos: for, by a curious error of the colonists, the two rivers have made an exchange of titles! the comanches--freed from missionary rule, and now equal to their adversaries by possession of the horse--forthwith commenced their plundering expeditions; and, with short intervals of truce,--periods _en paz_,--have continued them to the present hour. all northern and western texas they soon recovered; but they were not content with territory: they wanted horses and cattle and chattels, and white wives and slaves; and it would scarce be credited, were i to state the number of these they have taken within the last half-century. nearly every year they have been in the habit of making an expedition to the mexican settlements of the provinces tamaulipas, new leon, and chihuahua,--every expedition a fresh conquest over their feeble and corrupt adversaries. on every occasion they have returned with booty, consisting of horses, cattle, sheep, household utensils, and, sad to relate, human captives. women and children only do they bring back,--the men they kill upon sight. the children may be either male or female,--it matters not which, as these are to be adopted into their tribe, to become future warriors; and, strange to relate, many of these, when grown up, not only refuse to return to the land of their birth, but prove the most bitter and dangerous foes to the people from whom they have sprung! even the girls and women, after a period, become reconciled to their new home, and no longer desire to leave it. some, when afterwards discovered and ransomed by their kindred, have refused to accept the conditions, but prefer to continue the savage career into which misfortune has introduced them! many a heartrending scene has been the consequence of such apparently unnatural predilections. you would wonder why such a state of things has been so long submitted to by a civilised people; but it is not so much to be wondered at. the selfishness that springs from constant revolutions has destroyed almost every sentiment of patriotism in the mexican national heart; and, indeed, many of these captives are perhaps not much worse off under the guardianship of the brave comanches than they would have been, exposed to the petty tyranny and robber-rule that has so long existed in mexico. besides, it is doubtful whether the mexican government, with all her united strength, could retake them. the comanche country is as inaccessible to a regular army as the territory of timbuctoo; and it will give even the powerful republic of the north no small trouble to reduce these red freebooters to subjection. mexico had quite despaired of being able to make an effort; and in the last treaty made between her and the united states, one of the articles was a special agreement on the part of the latter to restrain the comanches from future forays into the mexican states, and also cause them to deliver up the mexican captives then in the hands of the indians! it was computed that their number at the time amounted to four thousand! it is with regret i have to add, that these unfortunates are still held in bondage. the great republic, too busy with its own concerns, has not carried out the stipulations of the treaty; and the present comanche war is but the result of this criminal negligence. had energetic measures been adopted at the close of the mexico-american war, the comanche would not now be harrying the settlers of texas. to prove the incapacity of the mexicans to deal with this warlike race, it only needs to consider the present condition of the northern mexican states. one half the territory in that extensive region has returned to the condition of a desert. the isolated "ranchos" have been long since abandoned,--the fields are overgrown with weeds,--and the cattle have run wild or been carried off by the comanches. only the stronger settlements and large fortified haciendas any longer exist; and many of these, too, have been deserted. where children once played in the security of innocence,--where gaily-dressed cavaliers and elegant ladies amused themselves in the pleasant _dia de campo_, such scenes are no longer witnessed. the rancho is in ruins,--the door hangs upon its hinge, broken and battered, or has been torn off to feed the camp-fire of the savage; the dwelling is empty and silent, except when the howling wolf or coyote wakes up the echoes of its walls. about ten years ago, the proud governor of the state of chihuahua--one of the most energetic soldiers of the mexican republic--had a son taken captive by the comanches. powerful though this man was, he knew it was idle to appeal to arms; and was only too contented to recover his child by paying a large ransom! this fact, more than a volume of words, will illustrate the condition of unhappy mexico. the comanche leads a gay, merry life,--he is far from being the indian of cooper's description. in scarcely any respect does he resemble the sombre son of the forest. he is lively, talkative, and ever ready for a laugh. his butt is the mexican presidio soldier, whom he holds in too just contempt. he is rarely without a meal. if the buffalo fails him, he can draw a steak from his spare horses, of which he possesses a large herd: besides, there are the wild mustangs, which he can capture on occasions. he has no work to do except war and hunting: at all other times he has slaves to wait upon him, and perform the domestic drudgery. when idle, he sometimes bestows great pains upon his dress,--which is the usual deer-skin tunic of the prairie indian, with mocassins and fringed leggings. sometimes a head-dress of plumes is worn; sometimes one of the skin of the buffalo's skull, with the horns left on! the robe of buffalo pelt hangs from his shoulders, with all the grandeur of a toga; but when he proceeds on a plundering expedition, all these fripperies are thrown aside, and his body appears naked from the waist to the ears. then only the breech-clout is worn, with leggings and mocassins on his legs and feet. a coat of scarlet paint takes the place of the hunting-shirt,--in order to render his presence more terrific in the eyes of his enemy. it needs not this. without any disguise, the sight of him is sufficiently horrifying,--sufficiently suggestive of "blood and murder." chapter twelve. the pehuenches, or pampas indians. the vast plain known as the "pampas" is one of the largest tracts of level country upon the face of the earth. east and west it stretches from the mouth of the rio de la plata to the foothills of the andes mountains. it is interrupted on the north by a series of mountains and hill country, that cross from the andes to the paraguay river, forming the sierras of mendoza, san luis, and cordova; while its southern boundary is not so definitely marked, though it may be regarded as ending at the rio negro, where it meets, coming up from the south, the desert plains of patagonia. geologically, the pampas (or plains, as the word signifies, in the language of the peruvian indians) is an alluvial formation,--the bed of an ancient sea,--upheaved by some unknown cause to its present elevation, which is not much above the ocean-level. it is not, therefore, a _plateau_ or "tableland," but a vast natural meadow. the soil is in general of a red colour, argillaceous in character, and at all points filled with marine shells and other testimonies that the sea once rolled over it. it is in the pampas formation that many of the fossil monsters have been found,--the gigantic megatherium, the colossal _mylodon_, and the giant armadillo (_glyptodon_), with many other creatures, of such dimensions as to make it a subject of speculation how the earth could have produced food enough for their maintenance. in giving to the pampas the designation of a _vast meadow_, do not suffer yourself to be misled by this phrase,--which is here and elsewhere used in rather a loose and indefinite manner. many large tracts in the pampas country would correspond well enough to this definition,--both as regards their appearance and the character of the herbage which covers them; but there are other parts which bear not the slightest resemblance to a meadow. there are vast tracts thickly covered with tall thistles,--so tall as to reach to the head of a man mounted on horseback, and so thickly set, that neither man nor horse could enter them without a path being first cleared for them. other extensive tracts are grown over with tall grass so rank as to resemble reeds or rushes more than grass; and an equally extensive surface is timbered with small trees, standing thinly and without underwood, like the fruit-trees in an orchard. again, there are wide morasses and extensive lakes, many of them brackish, and some as salt as the sea itself. in addition to these, there are "salinas," or plains of salt,--the produce of salt lakes, whose waters have evaporated, leaving a stratum of pure salt often over a foot in thickness, and covering their beds to an extent of many square leagues. there are some parts, too, where the pampas country assumes a sterile and stony character,-corresponding to that of the great desert of patagonia. it is not correct therefore, to regard the pampas as one unbroken tract of _meadow_. in one character alone is it uniform in being a country without mountains,--or any considerable elevations in the way of ridges or hills,--though a few scattered sierras are found both on its northern and southern edges. the _thistle pampas_, as we take the liberty of naming them, constitute perhaps the most curious section of this great plain; and not the less so that the "weed" which covers them is supposed not to be an indigenous production, but to have been carried there by the early colonists. about this, however, there is a difference of opinion. no matter whence sprung, the thistles have flourished luxuriantly, and at this day constitute a marked feature in the scenery of the pampas. their position is upon the eastern edge of the great plain, contiguous to the banks of the la plata; but from this river they extend backwards into the interior, at some points to the distance of nearly two hundred miles. over this vast surface they grow so thickly that, as already mentioned, it is not possible for either man or horse to make way through them. they can only be traversed by devious paths--already formed by constant use, and leading through narrow lanes or glades, where, for some reason, the thistles do not choose to grow. otherwise they cannot be entered even by cattle. these will not, unless compelled, attempt penetrating such an impervious thicket; and if a herd driven along the paths should chance to be "stampeded" by any object of terror, and driven to take to the thistles, scarce a head of the whole flock can ever afterwards be recovered. even the instincts of the dumb animals do not enable them to find their way out again; and they usually perish, either from thirst, or by the claws of the fierce pumas and jaguars, which alone find themselves at home in the labyrinthine "_cardonales_." the little _viscacha_ contrives to make its burrow among them, and must find subsistence by feeding upon their leaves and seed, since there is no other herbage upon the ground,--the well-armed thistle usurping the soil, and hindering the growth of any other plants. it may be proper to remark, however, that there are two kinds of these plants, both of which cover large tracts of the plain. one is a true thistle, while the other is a weed of the artichoke family, called by the spanish americans "cardoon." it is a species of _cardunculus_. the two do not mingle their stalks, though both form thickets in a similar manner and often in the same tract of country. the cardoon is not so tall as the thistle; and, being without spines, its "beds" are more easily penetrated; though even among these, it would be easy enough to get entangled and lost. it is proper to remark here, that these thistle-thickets do not shut up the country all the year round. only for a season,--from the time they have grown up and "shoot," till their tall ripened stalks wither and fall back to the earth, where they soon moulder into decay. the plains are then open and free to all creatures,--man among the rest,--and the gaucho, with his herds of horses, horned cattle, and sheep, or the troops of roving indians, spread over and take possession of them. the young thistles now present the appearance of a vast field of turnips; and their leaves, still tender, are greedily devoured by both cattle and sheep. in this condition the pampas thistles remain during their short winter; but as spring returns, they once more "bristle" up, till, growing taller and stouter, they present a _chevaux-de-frise_ that at length expels all intruders from their domain. on the western selvage of this thistle tract lies the grass-covered section of the pampas. it is much more extensive than that of the "cardonales,"--having an average width of three hundred miles, and running longitudinally throughout the whole northern and southern extension of the pampas. its chief characteristic is a covering of coarse grass,--which at different seasons of the year is short or tall, green, brown, or yellowish, according to the different degrees of ripeness. when dry, it is sometimes fired,--either by design or accident,--as are also the withered stems of the thistles; and on these occasions a conflagration occurs, stupendous in its effects,--often extending over vast tracts, and reducing everything to black ashes. nothing can be more melancholy to the eye than the aspect of a burnt pampa. the grass section is succeeded by that of the "openings," or scanty forests, already mentioned; but the trees in many places are more closely set; assuming the character of thickets, or "jungles." these tracts end among the spurs of the andes,--which, at some points, are thrown out into the plain, but generally rise up from it abruptly and by a well-defined border. the marshes and bitter lakes above mentioned are the produce of numerous streams, which have their rise in the great cordillera of the andes, and run eastward across the pampas. a few of these, that trend in a southerly direction, reach the atlantic by means of the two great outlets,--the "colorado" and "negro." all the others--and "their name is legion"--empty their waters into the morasses and lakes, or sink into the soil of the plains, at a greater or less distance from the cordillera, according to the body of water they may carry down. evaporation keeps up the equilibrium. who are the dwellers upon the pampas? to whom does this vast pasture-ground belong? whose flocks and herds are they that browse upon it? you will be told that the pampas belong to the republic of buenos ayres, or rather to the "states of the argentine confederation,"--that they are inhabited by a class of citizens called "gauchos," who are of spanish race, and whose sole occupation is that of herdsmen, breeders of cattle and horses,--men famed for their skill as horsemen, and for their dexterity in the use of the "lazo" and "bolas,"--two weapons borrowed from the aboriginal races. all this is but partially true. the proprietorship of this great plain was never actually in the hands of the buenos-ayrean government, nor in those of their predecessors,--the spaniards. neither has ever owned it--either by conquest or otherwise:--no further than by an empty boast of ownership; for, from the day when they first set foot upon its borders to the present hour, neither has ever been able to cross it, or penetrate any great distance into it, without a grand army to back their progress. but their possession virtually ceased at the termination of each melancholy excursion; and the land relapsed to its original owners. with the exception of some scanty strips along its borders, and some wider ranges, thinly occupied by the half-nomade gauchos, the pampas are in reality an indian territory, as they have always been; and the claim of the white man is no more than nominal,--a mere title upon the map. it is not the only vast expanse of spanish american soil that _never was spanish_. the true owners of the pampas, then, are the red aborigines,--the pampas indians; and to give some account of these is now our purpose. forming so large an extent, it is not likely it should all belong to one united tribe,--that would at once elevate them into the character of a nation. but they are not united. on the contrary, they form several distinct associations, with an endless number of smaller subdivisions or communities,--just in the same way as it is among their prairie cousin of the north. they may all, however, be referred to four grand tribal associations or nationalities,--the _pehuenches_, _puelches_, _picunches_, and _ranqueles_. some add the _puilliches_, who dwell on the southern rim of the pampas; but these, although they extend their excursions over a portion of the great plain, are different from the other pampas indians in many respects,--altogether a braver and better race of men, and partaking more of the character of the patagonians,--both in point of _physique_ and _morale_,--of which tribes, indeed, they are evidently only a branch. in their dealings with white men, when fairly treated, these have exhibited the same noble bearing which characterises the true patagonian. i shall not, therefore, lower the standard--neither of their bodies nor their minds--by classing them among "pampas indians." of these tribes--one and all of them--we have, unfortunately, a much less favourable impression; and shall therefore be able to say but little to their credit. the different names are all native. _puelches_ means the people living to the east, from "_puel_," east, and _che_, people. the _picunches_ derive this appellation, in a similar fashion, from "_picun_," signifying the north. the _pehuenches_ are the people of the pine-tree country, from "_pehuen_," the name for the celebrated "chili pine" (_araucaria_); and the _ranqueles_ are the men who dwell among the thistles, from _ranquel_, a thistle. these national appellations will give some idea of the locality which each tribe inhabits. the _ranqueles_ dwell, not among the thistles,-for that would be an unpleasant residence, even to a red-skin; but along the western border of this tract. to the westward of them, and up into the clefts of the cordilleras extends the country of the pehuenches; and northward of both lies the land of the picunches. their boundary in that direction _should be_ the frontiers of the _quasi-civilised_ provinces of san luis and cordova, but they are _not_; for the picunche can at will extend his plundering forays as far north as he pleases: even to _dovetailing_ them into the similar excursions of his _guaycuru_ kinsmen from the "gran chaco" on the north. the puelche territory is on the eastern side of the pampas, and south from buenos ayres. at one time these people occupied the country to the banks of the la plata; and no doubt it was they who first met the spaniards in hostile array. even up to a late period their forays extended almost to buenos ayres itself; but rosas, tyrant as he may have been, was nevertheless a true soldier, and in a grand military expedition against them swept their country, and inflicted such a terrible chastisement upon both them and the neighbouring tribes, as they had not suffered since the days of mendoza. the result has been a retirement of the puelche frontier to a much greater distance from buenos ayres; but how long it may continue stationary is a question,--no longer than some strong arm--such as that of rosas--is held threateningly over them. it is usual to inquire whence come a people; and the question has been asked of the pampas indians. it is not difficult to answer. they came from the land of arauco. yes, they are the kindred of that famed people whom the spaniards could never subdue,--even with all their strength put forth in the effort. they are near kindred too,--the pehuenches especially,--whose country is only separated from that of the araucanians by the great cordillera of chili; and with whom, as well as the spaniards on the chilian side, they have constant and friendly intercourse. but it must be admitted, that the araucanians have had far more than their just meed of praise. the romantic stories, in that endless epic of the rhymer ercilla, have crept into history; and the credulous molina has endorsed them: so that the true character of the araucanian indian has never been understood. brave he has shown himself, beyond doubt, in defending his country against spanish aggression; but so, too, has the carib and guaraon,--so, too, has the comanche and apache, the yaqui of sonora, the savage of the mosquito shore, the guaycuru of the gran chaco, and a score of other indian tribes,--in whose territory the spaniard has never dared to fix a settlement. brave is the araucanian; but, beyond this, he has few virtues indeed. he is cruel in the extreme,--uncivil and selfish,--filthy and indolent,--a polygamist in the most approved fashion,--a very tyrant over his own,--in short, taking rank among the beastliest of semi-civilised savages,--for it may be here observed, that he is not exactly what is termed a _savage_: that is, he does not go naked, and sleep in the open air. on the contrary, he clothes himself in stuff of his own weaving,--or rather, that of his slave-wives,--and lives in a hut which they build for him. he owns land, too,--beautiful fields,--of which he makes no use: except to browse a few horses, and sheep, and cattle. for the rest, he is too indolent to pursue agriculture; and spends most of his time in drinking _chicha_, or tyrannising over his wives. this is the heroic araucanian who inhabits the plains and valleys of southern chili. unfortunately, by passing to the other side of the andes, he has not improved his manners. the air of the pampas does not appear to be conducive to virtue; and upon that side of the mountains it can scarce be said to exist,--even in the shape of personal courage. the men of the pines and thistles seem to have lost this quality, while passing through the snows of the cordilleras, or left it behind them, as they have also left the incipient civilisation of their race. on the pampas we find them once more in the character of the true savage: living by the chase or by plunder; and bartering the produce of the latter for the trappings and trinkets of personal adornment, supplied them by the unprincipled white trader. puelches and picunches, pehuenches and ranqueles, all share this character alike,--all are treacherous, quarrelsome, and cowardly. but we shall now speak more particularly of their customs and modes of life, and we may take the "pine people" as our text,--since these are supposed to be most nearly related to the true araucanians,--and, indeed, many of their "ways" are exactly the same as those of that "heroic nation." the "people of the pines" are of the ordinary stature of north-american indians, or of europeans; and their natural colour is a dark coppery hue. but it is not often you can see them in their natural colour: for the pampas indians, like nearly all the aboriginal tribes, are "painters." they have pigments of black and white, blue, red, and yellow,--all of which they obtain from different coloured stones, found in the streams of the cordilleras. "yama," they call the black stone; "colo," the red; "palan," the white; and "codin," the blue; the yellow they obtain from a sort of argillaceous earth. the stones of each colour they submit to a rubbing or grinding process, until a quantity of dust is produced; which, being mixed with suet, constitutes the paint, ready for being laid on. the pampas indians do not confine themselves to any particular "escutcheon." in this respect their fancy is allowed a wide scope, and their fashions change. a face quite black, or red, is a common countenance among them; and often may be seen a single band, of about two inches in width, extending from ear to ear across the eyes and nose. on war excursions they paint hideous figures: not only on their own faces and bodies, but on their trappings, and even upon the bodies of their horses,--aiming to render themselves as appalling as possible in the sight of their enemies. the same trick is employed by the warriors of the prairies, as well as in many other parts of the world. under ordinary circumstances, the pampas indian is not a _naked_ savage. on the contrary, he is well clad; and, so far from obtaining the material of his garments from the looms of civilised nations, he weaves it for himself,--that is, his wives weave it; and in such quantity that he has not only enough for his own "wear," but more than enough, a surplus for trade. the cloth is usually a stuff spun and woven from sheep's wool. it is coarse, but durable; and in the shape of blankets or "ponchos," is eagerly purchased by the spanish traders. silver spurs, long, pointed knives, lance-heads, and a few other iron commodities, constitute the articles of exchange, with various ornamental articles, as beads, rings, bracelets, and large-headed silver bodkins to fasten their cloaks around the shoulders of his "ladies." nor is he contented with mere tinsel, as other savages are,--he can tell the difference between the real metal and the counterfeit, as well as the most expert assayer; and if he should fancy to have a pair of silver spurs, not even a jew peddler could put off upon him the plated "article." in this respect the araucanian indian has been distinguished, since his earliest intercourse with europeans; and his pampas kindred are equally subtle in their appreciation. the pampas indian, when well dressed, has a cloak upon his shoulders of the thick woollen stuff already described. it is usually woven in colours; and is not unlike the "poncho" worn by the "gauchos" of buenos ayres, or the "serape" of the mexicans. besides the cloak, his dress consists of a mere skirt,--also of coloured woollen stuff, being an oblong piece swathed around his loins, and reaching to the knee. a sash or belt--sometimes elaborately ornamented--binds the cloth around the waist. boots of a peculiar construction complete the costume. these are manufactured in a very simple manner. the fresh skin taken from a horse's hind leg is drawn on--just as if it were a stocking--until the heel rests in that part which covered the hock-joint of the original wearer. the superfluous portion is then trimmed to accommodate itself as a covering for the foot; and the boot is not only finished, but put on,--there to remain until it is worn out, and a new one required! if it should be a little loose at first, that does not matter. the hot sun, combined with the warmth of the wearer's leg, soon contracts the hide, and brings it to "fit like a glove." the head is often left uncovered; but as often a sort of skullcap or helmet of horse-skin is worn; and not unfrequently a high, conical hat of palm fibre. this last is not a native production, but an importation of the traders. so also is a pair of enormous rings of brass, which are worn in the ears; and are as bulky as a pair of padlocks. in this costume, mounted on horseback with his long lance in hand, the pampas indian would be a picturesque, object; and really is so, when _clean_; but that is only on the very rarest occasions,--only when he has donned a new suit. at all other times, not only his face and the skin of his body, but every rag upon his back, are covered with grease and filth,--so as to produce an effect rather "tatterdemalion" than picturesque. the "squaw" is costumed somewhat differently. first, she has a long "robe," which covers her from neck to heels, leaving only her neck and arms bare. the robe is of red or blue woollen stuff of her own weaving. this garment is the "quedeto." a belt, embroidered with beads, called "quepique," holds it around the waist, by means of a large silver buckle. this belt is an article, of first fashion. over the shoulders hangs the "iquilla," which is a square piece of similar stuff,--but usually of a different dye; and which is fastened in front by a pin with a large silver head, called the "tupo." the shock of thick, black hair--after having received the usual anointment of mare's tallow, the fashionable hair-oil of the pampas indians--is kept in its place by a sort of cap or _coiffure_, like a shallow dish inverted, and bristling all over with trader's beads. to this a little bell is fastened; or sometimes a brace of them are worn as earrings. these tinkle so agreeably in the ears of the wearer, that she can scarce for a moment hold her head at rest, but keeps rocking it from side to side, as a spanish coquette would play with her fan. in addition to this varied wardrobe, the pampas belle carries a large stock of bijouterie,--such as beads and bangles upon her neck, rings and circlets upon her arms, ankles, and fingers; and, to set her snaky locks in order, she separates them by means of a stiff brush, made from the fibrous roots of a reed. _she_ is _picturesque_ enough, but never _pretty_. nature has given the araucanian woman a plain face; and all the adornment in the world cannot hide its homeliness. the pehuenche builds no house. he is a true nomade, and dwells in a tent, though one of the rudest construction. as it differs entirely from the tent of the prairie indians, it may be worth while describing it. its framework is of reeds,--of the same kind as are used for the long lances so often mentioned; and which resemble _bambusa_ canes. they grow in plenty throughout the pampas, especially near the mountains,-where they form impenetrable thickets on the borders of the marshy lakes. any other flexible poles will serve as well, when the canes are not "handy." the poles being procured, one is first bent into a semicircle, and in this shape both ends are stuck into the ground, so as to form an arch about three feet in height. this arch afterwards becomes the doorway or entrance to the tent. the remaining poles are attached to this first one at one end, and at right angles; and being carried backward with a slight bend, their other ends are inserted into the turf. this forms the skeleton of the tent; and its covering is a horse-skin, or rather a number of horse-skins stitched together, making a sort of large tarpaulin. the skins are sewed with the sinews of the horse or ox,-which are first chewed by the women, until their fibres become separated like hemp, and are afterwards spun by them into twine. the tent is not tall enough to admit of a man standing erect; and in it the pehuenche crouches, whenever it snows, rains, or blows cold. he has sheep-skins spread to sleep upon, and other skins to serve as bed-clothes,--all in so filthy a condition, that but for the cold, he might find it far more comfortable to sleep in the open air. he never attempts to sweep out this miserable lair; but when the spot becomes _very_ filthy, he "takes up his sticks" and shifts his penates to a fresh "location." he is generally, however, too indolent to make a "remove,"--until the dirt has accumulated so as to "be in the way." the pampas indian is less of a hunter than most other tribes of savages. he has less need to be,--at least, in modern days; for he is in possession of three kinds of valuable domestic animals, upon which he can subsist without hunting,--horses, horned cattle, and sheep. of course, these are of colonial origin. he hunts, nevertheless, for amusement, and to vary his food. the larger ostrich (_rhea americana_), the guanaco, and the great "gama" stag of the pampas (_cervus campestris_) are his usual game. these he captures with the _bolas_,-which is his chief implement for the chase. in the flesh of the stag he may find a variety, but not a delicacy. its venison would scarce tempt a lucullian palate,--since even the hungriest gaucho will not eat it. it is a large beast, often weighing above three hundred pounds; and infecting the air with such a rank odour, that dogs decline to follow it in the chase. this odour is generated in a pair of glands situated near the eyes; and it has the power of projecting it at will,--just as skunks and polecats when closely chased by an enemy. if these glands are cut out immediately after the animal is killed, the flesh tastes well enough: otherwise it is too rank to be eatable. the indians cure it of the "bad smell" by burying it for several days in the ground; which has the effect of "sweetening" it, while at the same time it makes it more tender. but the pampas indian does not rely upon the chase for his subsistence. he is a small grazier in his way; and is usually accompanied in his wanderings by a herd of horned cattle and sheep. he has also his stud of horses; which furnish the staple of his food,--for whenever he hungers, a horse is "slaughtered." strictly speaking, it is not a horse, for it is the mare that is used for this purpose. in no part of the pampas region,--not even in the white settlement,--are the mares used for riding. it would be considered derogatory to the character of either gaucho or indian to mount a mare; and these are kept only for breeding purposes. not that the indian is much of a horse-breeder. he keeps up his stock in quite another way,--by stealing. the same remark will apply to the mode by which he recruits his herds of horned cattle, and his flocks of sheep. the last he values only for their wool; out of which his garments are woven; and which has replaced the scantier fleece of the vicuna and guanaco,--the material used by him in days gone by. from whom does he steal these valuable animals,--and in such numbers as almost to subsist upon them? that is a question that can be easily answered; though it is not exact language to say that he steals them. rather say that he _takes_ them, by main force and in open daylight,-takes them from the creole spaniard,--the gaucho and _estanciero_. nay, he does not content himself always with four-footed plunder; but often returns from his forays with a crowd of captives,--women and children, with white skins and ruddy cheeks,--afterwards to be converted into his drudges and slaves. not alone to the frontier does he extend these plundering expeditions; but even into the heart of the spanish settlements,--to the estancias of grandees, and the gates of fortified towns; and, strange as it may read, this condition of things has been in existence, not for years, but, at intervals, extending over a century! but what may read stranger still--and i can vouch for it as true--is, that _white men_ actually purchase this plunder from him,--not the human part of it, but the four-footed and the _furniture_,--for this, too, sometimes forms part of his booty. yes, the surplus, of which the indian can make no use or cares nothing about,--more especially the large droves of fine horses, taken from the spaniards of buenos ayres,-are driven through the passes of the cordilleras, and sold to the spaniards of chili! the people of one province actually encouraging the robbery of their kindred race in another! the very same condition of things exists in north america. the comanche, steals, or rather takes, from the white settler of tamaulipas and new leon,--the apache rieves from the white settler of chihuahua and sonora: both sell to the white settlers, who dwell along the banks of the rio del norte! and all these settlers are of one race,--one country,--one kindred! these things have hitherto been styled _cosas de mexico_. their signification may be extended to south america: since they are equally _cosas de las pampas_. we are not permitted to doubt the truth of these appalling facts,-neither as regards the nefarious traffic, nor the captive women and children. at this very hour, not less than four thousand individuals of spanish-mexican race are held captives by the prairie tribes; and when rosas swept the pampas, he released fifteen hundred of similar unfortunates from their worse than egyptian taskmasters,--the puelches! with such facts as these before our eyes, who can doubt the decline of the spanish power? the utter enfeeblement of that once noble race? who can contradict the hypothetical prophecy--more than once offered in these pages--that if the two races be left to themselves, the aboriginal, before the lapse of a single century, will once more recover the soil; and his haughty victor be swept from the face of the american continent? nor need such a change be too keenly regretted. the spanish occupation of america has been an utter failure. it has served no high human purpose, but the contrary. it has only corrupted and encowardiced a once brave and noble race; and, savage as may be the character of that which would supplant it, still that savage has within him the elements of a future civilisation. not so the spaniard. the fire of his civilisation has blazed up with a high but fitful gleam. it has passed like the lightning's flash. its sparks have fallen and died out,--never to be rekindled again. chapter thirteen. the yamparicos, or root-diggers. it is now pretty generally known that there are many _deserts_ in north america,--as wild, waste, and inhospitable as the famed sahara of africa. these deserts occupy a large portion of the central regions of that great continent--extending, north and south, from mexico to the shores of the arctic sea; and east and west for several hundred miles, on each side of the great vertebral chain of the rocky mountains. it is true that in the vast territory thus indicated, the desert is not continuous; but it is equally true that the fertile stripes or valleys that intersect it, bear but a very small proportion to the whole surface. many tracts are there, of larger area than all the british islands, where the desert is scarce varied by an oasis, and where the very rivers pursue their course amidst rocks and barren sands, without a blade of vegetation on their banks. usually, however, a narrow selvage of green--caused by the growth of cotton woods, willows, and a few humbler plants--denotes the course of a stream,--a glad sight at all times to the weary and thirsting traveller. these desert wastes are not all alike, but differ much in character. in one point only do they agree,--they are all _deserts_. otherwise they exhibit many varieties,--both of aspect and nature. some of them are level plains, with scarce a hill to break the monotony of the view: and of this character is the greater portion of the desert country extending eastward from the rocky mountains to about 100 degrees of west longitude. at this point the soil gradually becomes more fertile,-assuming the character of timbered tracts, with prairie opening between,--at length terminating in the vast, unbroken forests of the mississippi. this eastern desert extends parallel with the rocky mountains,-throughout nearly the whole of their length,--from the rio grande in mexico, northward to the mackenzie river. one tract of it deserves particular mention. it is that known as the _llano estacado_, or "staked plain," it lies in north-western texas, and consists of a barren plateau, of several thousand square miles in extent, the surface of which is raised nearly a thousand feet above the level of the surrounding plains. geologists have endeavoured to account for this singular formation, but in vain. the table-like elevation of the llano estacado still remains a puzzle. its name, however, is easier of explanation. in the days of spanish supremacy over this part of prairie-land, caravans frequently journeyed from santa fe in new mexico, to san antonio in texas. the most direct route between these two provincial capitals lay across the llano estacado; but as there were neither mountains nor other landmarks to guide the traveller, he often wandered from the right path,--a mistake that frequently ended in the most terrible suffering from thirst, and very often in the loss of life. to prevent such catastrophes, stakes were set up at such intervals as to be seen from one another, like so many "telegraph posts;" and although these have long since disappeared, the great plain still bears the name, given to it from this circumstance. besides the contour of surface, there are other respects in which the desert tracts of north america differ from one another. in their vegetation--if it deserves the name--they are unlike. some have no vegetation whatever; but exhibit a surface of pure sand, or sand and pebbles; others are covered with a stratum of soda, of snow-white colour, and still others with a layer of common salt, equally white and pure. many of these salt and soda "prairies"--as the trappers term them--are hundreds of square miles in extent. again, there are deserts of scoria, of lava, and pumice-stone,--the "cut-rock prairies" of the trappers,--a perfect contrast in colour to the above mentioned. all these are absolutely without vegetation of any sort. on some of the wastes--those of southern latitudes,--the cactus appears of several species, and also the wild agave, or "pita" plant; but these plants are in reality but emblems of the desert itself. so, also, is the _yucca_, which thinly stands over many of the great plains, in the south-western part of the desert region,--its stiff, shaggy foliage in no way relieving the sterile landscape, but rather rendering its aspect more horrid and austere. again, there are the deserts known as "chapparals,"--extensive jungles of brush and low trees, all of a thorny character; among which the "mezquite" of several species (_mimosas_ and _acacias_), the "stink-wood" or _creosote plant_ (_kaeberlinia_), the "grease-bush" (_obione canescens_), several kinds of _prosopis_, and now and then, as if to gratify the eye of the tired traveller, the tall flowering spike of the scarlet _fouquiera_. further to the north--especially throughout the upper section of the great salt lake territory--are vast tracts, upon which scarce any vegetation appears, except the _artemisia_ plant, and other kindred products of a sterile soil. of all the desert tracts upon the north-american continent, perhaps none possesses greater interest for the student of cosmography than that known as the "great basin." it has been so styled from the fact of its possessing a hydrographic system of its own,--lakes and rivers that have no communication with the sea; but whose waters spend themselves within the limits of the desert itself, and are kept in equilibrium by evaporation,--as is the case with many water systems of the continents of the old world, both in asia and africa. the largest lake of the "basin" is the "great salt lake,"--of late so celebrated in mormon story: since near its southern shore the chief city of the "latter-day saints" is situated. but there are other large lakes within the limits of the great basin, both fresh and saline,--most of them entirely unconnected with the great salt lake, and some of them having a complete system of waters of their own. there are "utah" and "humboldt," "walker's" and "pyramid" lakes, with a long list of others, whose names have been but recently entered upon the map, by the numerous very intelligent explorers employed by the government of the united states. large rivers, too, run in all directions through this central desert, some of them falling into the great salt lake, as the "bear" river, the "weber," the "utah," from utah lake,--upon which the mormon metropolis stands,--and which stream has been absurdly baptised by these free-living fanatics as the "jordan?" other rivers are the "timpanogos," emptying into lake utah; the "humboldt," that runs to the lake of that name; the "carson" river; besides many of lesser note. the limits assigned to the great basin are tolerably well-defined. its western rim is the _sierra nevada_, or "snowy range" of california; while the rocky and wahsatch mountains are its boundaries on the east. several cross-ranges, and spurs of ranges, separate it from the system of waters that empty northward into the columbia river of oregon; while upon its southern edge there is a more indefinite "divide" between it and the great desert region of the western "colorado." strictly speaking, the desert of the great basin might be regarded as only a portion of that vast tract of sterile, and almost treeless soil, which stretches from the mexican state of sonora to the upper waters of oregon; but the deserts of the colorado on the south, and those of the "forks" of the columbia on the north, are generally treated as distinct territories; and the great basin, with the limits already assigned, is suffered to stand by itself. as a separate country, then, we shall here consider it. from its name, you might fancy that the great basin was a low-lying tract of country. this, however, is far from being the case. on the contrary, nearly all of it is of the nature of an elevated tableland, even its lakes lying several thousand feet above the level of the sea. it is only by its "rim," of still more elevated mountain ridges, that it can lay claim to be considered as a "basin;" but, indeed, the name-given by the somewhat speculative explorer, fremont--is not very appropriate, since later investigations show that this rim is in many places neither definite nor regular,--especially on its northern and southern sides, where the "great basin" may be said to be badly cracked, and even to have some pieces chipped out of its edge. besides the mountain chains that surround it, many others run into and intersect it in all directions. some are spurs of the main ranges; while others form "sierras"--as the spaniards term them--distinct in themselves. these sierras are of all shapes and of every altitude,-from the low-lying ridge scarce rising above the plain, to peaks and summits of over ten thousand feet in elevation. their forms are as varied as their height. some are round or dome-shaped; others shoot up little turrets or "needles;" and still others mount into the sky in shapeless masses,--as if they had been flung upon the earth, and upon one another, in some struggle of titans, who have left them lying in chaotic confusion. a very singular mountain form is here observed,-though it is not peculiar to this region, since it is found elsewhere, beyond the limits of the great basin, and is also common in many parts of africa. this is the formation known among the spaniards as _mesas_, or "table-mountains," and by this very name it is distinguished among the colonists of the cape. the _llano estacado_, already mentioned, is often styled a "mesa," but its elevation is inconsiderable when compared with the _mesa_ mountains that occur in the regions west of the great rocky chain,--both in the basin and on the deserts of the colorado. many of these are of great height,--rising several thousand feet above the general level; and, with their square truncated _table-like_ tops, lend a peculiar character to the landscape. the characteristic vegetation of the great basin is very similar to that of the other central regions of the north-american continent. only near the banks of the rivers and some of the fresh-water lakes, is there any evidence of a fertile soil; and even in these situations the timber is usually scarce and stunted. of course, there are tracts that are exceptional,--oases, as they are geographically styled. of this character is the country of the mormons on the jordan, their settlements on the utah and bear rivers, in tuilla and ogden valleys, and elsewhere at more remote points. there are also isolated tracts on the banks of the smaller streams and the shores of lakes not yet "located" by the colonist; and only frequented by the original dwellers of the desert, the red aborigines. in these oases are usually found cottonwood-trees, of several distinct species,--one or other of which is the characteristic, vegetation on nearly every stream from the mississippi to the mountains of california. willows of many species also appear; and now and then, in stunted forms, the oak, the elm, maples, and sycamores. but all these last are very rarely encountered within the limits of the desert region. on the mountains, and more frequently in the mountain ravines pines of many species--some of which produce edible cones--grow in such numbers as to merit the name of forests, of greater or less extent. among these, or apart from them, may be distinguished the darker foliage of the cedar (_juniperus_) of several varieties, distinct from the _juniperus virginiana_ of the states. the arid plains are generally without the semblance of vegetation. when any appears upon them, it is of the character of the "chapparal," already described; its principal growth being "tornilla," or "screw-wood," and other varieties of _mezquite_; all of them species of the extensive order of the _leguminosae_, and belonging to the several genera of _acacias_, _mimosas_, and _robinias_. in many places _cactacae_ appear of an endless variety of forms; and some,--as the "pitahaya" (_cereus giganteus_), and the "tree" and "cochineal" cacti (_opuntias_),--of gigantesque proportions. these, however, are only developed to their full size in the regions further south,--on the deserts of the colorado and gila,--where also the "tree yuccas" abound, covering tracts of large extent, and presenting the appearance of forests of palms. perhaps the most characteristic vegetation of the great basin--that is, if it deserve the name of a vegetation--is the wild sage, or _artemisia_. with this plant vast plains are covered, as far as the eye can reach; not presenting a hue of green, as the grass prairies do, but a uniform aspect of greyish white, as monotonous as if the earth were without a leaf to cover it. instead of relieving the eye of the traveller, the artemisia rather adds to the dreariness of a desert landscape,--for its presence promises food neither to man nor horse, nor water for them to drink, but indicates the absence of both. upon the hill-sides also is it seen, along the sloping declivities of the sierras, marbling the dark volcanic rocks with its hoary frondage. more than one species of this wild sage occurs throughout the american desert: there are four or five kinds, differing very considerably from each other, and known to the trappers by such names as "wormwood," "grease-bush," "stink-plant," and "rabbit-bush." some of the species attain to a considerable height,--their tops often rising above the head of the traveller on horseback,--while another kind scarce reaches the knee of the pedestrian. in some places the plains are so thickly covered with this vegetation, that it is difficult for either man or horse to make way through them,-the gnarled and crooked branches twisting into each other and forming an impenetrable wattle. at other places, and especially where the larger species grow, the plants stand apart like apple-trees in an orchard, and bear a considerable resemblance to shrubs or small trees. both man and horse refuse the artemisia as food; and so, too, the less fastidious mule. even a donkey will not eat it. there are animals, however,--both birds and beasts, as will be seen hereafter,--that relish the sage-plant; and not only eat of it, but subsist almost exclusively on its stalks, leaves, and berries. the denizens of the great basin desert--i mean its human denizens--are comprehended in two great families of the aboriginal race,--the _utahs_ and _snakes_, or _shoshonees_. of the white inhabitants--the mormons and trap-settlers--we have nothing to say here. nor yet much respecting the above-mentioned indians, the utahs and snakes. it will be enough for our purpose to make known that these two tribes are distinct from each other,--that there are many communities or sub-tribes of both,-that each claims ownership of a large tract of the central region, lying between the rocky mountains and the sierra nevada; and that their limits are not coterminal with those of the great basin: since the range of the snakes extends into oregon upon the north, while that of the utahs runs down into the valley of the rio del norte upon the south. furthermore, that both are in possession of the horse,--the utahs owning large numbers,--that both are of roving and predatory habits, and quite as wicked and warlike as the generality of their red brethren. they are also as well to do in the world as most indians; but there are many degrees in their "civilisation," or rather in the comforts of their life, depending upon the situation in which they may be placed. when dwelling upon a good "salmon-stream," or among the rocky mountain "parks," that abound in game, they manage to pass a portion of the year in luxuriant abundance. in other places, however, and at other times, their existence is irksome enough,--often bordering upon actual starvation. it may be further observed, that the utahs and snakes usually occupy the larger and more fertile oases of the desert,--wherever a tract is found of sufficient size to subsist a community. with this observation i shall dismiss both these tribes; for it is not of them that our present sketch is intended to treat. this is specially designed for a far _odder_ people than either,--for the _yamparicos_, or "root-diggers;" and having described their country, i shall now proceed to give some account of themselves. it may be necessary here to remark that the name "diggers," has of late been very improperly applied,--not only by the settlers of california, but by some of the exploring officers of the united states government. every tribe or community throughout the desert, found existing in a state of special wretchedness, has been so styled; and a learned ethnologist (!), writing in the "examiner," newspaper, gravely explains the name, by deriving it from the gold-diggers of california! this "conceit" of the london editor is a palpable absurdity,--since the digger indians were so designated, long before the first gold-digger of california put spade into its soil. the name is of "trapper" origin; bestowed upon these people from the observation of one of their most common practices,--viz, the _digging for roots_, which form an essential portion of their subsistence. the term "yamparico," is from a spanish source, and has a very similar meaning to that of "root-digger." it is literally "yampa-rooter," or "yampa-root eater," the root of the "yampa" (_anethum graviolens_) being their favourite food. the true "diggers" are not found in california west of the sierra nevada; though certain tribes of ill-used indians in that quarter are called by the name. the great deserts extending between the nevada and the rocky mountains are their locality; and their limits are more or less cotemporaneous with those of the shoshonees or snakes, and the utahs,--of both of which tribes they are supposed to be a sort of outcast kindred. this hypothesis, however, rests only on a slight foundation: that of some resemblance in habits and language, which are very uncertain _criteria_ where two people dwell within the same boundaries,--as, for instance, the whites and blacks in virginia. in fact, the language of the diggers can scarce be called a language at all: being a sort of gibberish like the growling of a dog, eked out by a copious vocabulary of signs: and perhaps, here and there, by an odd word from the shoshonee or utah,--not unlikely, introduced by the association of the diggers with these last-mentioned tribes. in the western and southern division of the great basin, the digger exists under the name of _paiute_, or more properly, _pah-utah_,-so-called from his supposed relationship with the tribe of the utahs. in some respects the pah-utahs differ from the shoshokee, or snake-diggers; though in most of their characteristic habits they are very similar to each other. there might be no anomaly committed by considering them as one people; for in personal appearance and habits of life the pah-utah, and the "shoshokee"--this last is the national appellation of the yampa-eater,--are as like each other as _eggs_. we shall here speak however, principally of the shoshokees: leaving it to be understood, that their neighbours the "paiutes" will equally answer the description. although the shoshokees, as already observed, dwell within the same limits as their supposed kindred the shoshonees, they rarely or never associate with the latter. on the contrary, they keep well out of their way,--inhabiting only those districts of country where the larger shoshonee communities could not dwell. the very smallest oasis, or the tiniest stream, affords all the fertility that is required for the support of a digger family; and rarely are these people found living more than one, or at most, two or three families together. the very necessity of their circumstances precludes the possibility of a more extensive association; for on the deserts where they dwell, neither the earth nor the air, nor yet the water, affords a sufficient supply of food to support even the smallest "tribe." not in tribes, then, but in single families, or little groups of two or three, do the digger indians dwell,--not in the larger and more fertile valleys, but in those small and secluded; in the midst of the sage-plains, or more frequently in the rocky defiles of the mountains that stand thickly over the "basin." the shoshokee is no _nomade_, but the very reverse. a single and isolated mountain is often the abode of his group or family; and beyond this his wanderings extend not. there he is at home, knowing every nook and rat-hole in his own neighbourhood; but as ignorant of the world beyond as the "sand-rats" themselves,--whose pursuit occupies the greater portion of his time. in respect to his "settled" mode of life, the _shoshokee_ offers a striking contrast to the _shoshonee_. many of the latter are indians of noble type,--warriors who have tamed the horse, and who extend their incursions, both hunting and hostile, into the very heart of the rocky mountains,--up their fertile valleys, and across their splendid "parks," often bringing back with them the scalps of the savage and redoubtable blackfeet. far different is the character of the wretched shoshokee,--the mere semblance of a human being,--who rarely strays out of the ravine in which he was brought forth; and who, at sight of a human face--be it of friend or enemy--flies to his crag or cave like a hunted beast! the pah-utah diggers, however, are of a more warlike disposition; or rather a more wicked and hostile one,--hostile to whites, or even to such other indians as may have occasion to travel through the deserts they inhabit. these people are found scattered throughout the whole southern and south-western portion of the great basin,--and also in the north-western part of the colorado desert,--especially about the sevier river, and on several of the tributaries of the great colorado itself of the west it was through this part of the country that the caravans from california to new mexico used to make their annual "trips,"--long before alta calafornia became a possession of the united states,--and the route by which they travelled is known as the _spanish trail_. the object of these caravans was the import of horses, mules, and other animals,--from the fertile valleys of the san joaquin and sacramento rivers, to the more sterile settlements of new mexico. several kinds of goods were also carried into these interior countries. this spanish trail was far from running in a direct line. the sandy, waterless plain--known more particularly as the colorado desert--could not be crossed with safety, and the caravan-route was forced far to the north; and entered within the limits of the great basin--thus bringing it through the county inhabited by the pah-utah diggers. the consequence was, that these savages looked out annually for its arrival; and, whenever an opportunity offered, stole the animals that accompanied it, or murdered any of the men who might be found straggling from the main body. when bent on such purposes, these diggers for a time threw aside their solitary habits,--assembling in large bands of several hundred each, and following the caravan travellers, like wolves upon the track of a gang of buffaloes. they never made their attacks upon the main body, or when the white men were in any considerable force. only small groups who had lagged behind, or gone too rashly in advance, had to fear from these merciless marauders,--who never thought of such a thing as making captives, but murdered indiscriminately all who fell into their hands. when horses or mules were captured, it was never done with the intention of keeping them to ride upon. scarcely ever do the pah-utahs make such a use of the horse. only for food were these stolen or plundered from their owners; and when a booty of this kind was obtained, the animals were driven to some remote defile among the mountains, and there slaughtered outright. so long as a morsel of horse or mule flesh remained upon the bones, the diggers kept up a scene of feasting and merriment--precisely similar to the _carnivals_ of the african bushmen, after a successful foray upon the cattle of the dutch settlers near the cape. indeed there is such a very striking resemblance between the bushmen of africa and these digger indians of north america; that, were it not for the distinction of race, and some slight differences in personal appearance, they might pass as one people. in nearly every habit and custom, the two people resemble each other; and in many mental characteristics they appear truly identical. the pah-utah diggers have not yet laid aside their hostile and predatory habits. they are at the present hour engaged in plundering forays,-acting towards the emigrant trains of californian adventurers just as they did towards the spanish caravans. but they usually meet with a very different reception from the more daring saxon travellers, who constitute the "trains" now crossing their country; and not unfrequently a terrible punishment is the reward of their audacity. for all that, many of the emigrants, who have been so imprudent as to travel in small parties, have suffered at their hands, losing not only their property, but their lives; since hundreds of the bravest men have fallen by the arrows of these insignificant savages! even the exploring parties of the united states government, accompanied by troops, have been attacked by them; and more than one officer has fallen a victim to their ishmaelitish propensities. it is not in open warfare that there is any dread of them. the smallest party of whites need not fear to encounter a hundred of them at once; but their attacks are made by stealth, and under cover of the night; and, as soon as they have succeeded in separating the horses or other animals from the travellers' camp, they drive them off so adroitly that pursuit is impossible. whenever a grand blow has been struck--that is, a traveller has been murdered--they all disappear as if by magic; and for several days after not one is to be seen, upon whom revenge might be taken. the numerous "smokes," rising up out of the rocky defiles of the mountains, are then the only evidence that human beings are in the neighbourhood of the travellers' camp. the digger is different from other north-american indians,--both in physical organisation and intellectual character. so low is he in the scale of both, as to dispute with the african bushman, the andaman islander, and the starving savage of tierra del fuego, the claim to that point in the transition, which is supposed to separate the monkey from the man. it has been variously awarded by ethnologists, and i as one have had my doubts, as to which of the three is deserving of the distinction. upon mature consideration, however, i have come to the conclusion that the digger is entitled to it. this miserable creature is of a dark-brown or copper colour,--the hue so generally known as characteristic of the american aborigines. he stands about five feet in height,--often under but rarely over this standard,-and his body is thin and meagre, resembling that of a frog stretched upon a fish-hook. the skin that covers it--especially that of an old digger--is wrinkled and corrugated like the hide of an asiatic rhinoceros,--with a surface as dry as parched buck-skin. his feet, turned in at the toes,--as with all the aborigines of america,--have some resemblance to human feet; but in the legs this resemblance ends. the lower limbs are almost destitute of calves, and the knee-pans are of immense size,--resembling a pair of pads or callosities, like those upon goats and antelopes. the face is broad and angular, with high cheek-bones; the eyes small, black, and sunken, and sparkle in their hollow sockets, not with true intelligence, but that sort of vivacity which may often be observed in the lower animals, especially in several species of monkeys. throughout the whole physical composition of the digger, there is only one thing that appears luxuriant,--and that is his hair. like all indians he is amply endowed in this respect, and long, black tresses--sometimes embrowned by the sun, and matted together with mud or other filth--hang over his naked shoulders. generally he crops them. in the summer months, the digger's costume is extremely simple,--after the fashion of that worn by our common parents, adam and eve. in winter, however, the climate of his desert home is rigorous in the extreme,--the mountains over his head, and the plains under his feet, being often covered with snow. at this season he requires a garment to shelter his body from the piercing blast; and this he obtains by stitching together a few skins of the sage-hare, so as to form a kind of shirt or body-coat. he is not always rich enough to have even a good coat of this simple material; and its scanty skirt too often exposes his wrinkled limbs to the biting frost. between the digger and his wife, or "squaw," there is not much difference either in costume or character. the latter may be distinguished, by being of less stature, rather than by any feminine graces in her physical or intellectual conformation. she might be recognised, too, by watching the employment of the family; for it is she who does nearly all the work, stitches the rabbit-skin shirt, digs the "yampa" and "kamas" roots, gathers the "mezquite" pods, and gets together the larder of "prairie crickets." though lowest of all american indians in the scale of civilisation, the digger resembles them all in this,--he regards himself as lord and master, and the woman as his slave. as already observed, there is no such thing as a tribe of diggers,-nothing of the nature of a political organisation; and the chief of their miserable little community--for sometimes there is a head man--is only he who is most regarded for his strength. indeed, the nature of their country would not admit of a large number of them living together. the little valleys or "oases"--that occur at intervals along the banks of some lone desert stream,--would not, any one of them, furnish subsistence to more than a few individuals,--especially to savages ignorant of agriculture,--that is, not knowing how to _plant_ or _sow_. the diggers, however, if they know not how to _sow_, may be said to understand something about how to _reap_, since _root-digging_ is one of their most essential employments,--that occupation from which they have obtained their distinctive appellation, in the language of the trappers. not being agriculturists, you will naturally conclude that they are either a pastoral people, or else a nation of hunters. but in truth they are neither one nor the other. they have no domestic animal,--many of them not even the universal dog; and as to hunting, there is no large game in their country. the buffalo does not range so far west; and if he did, it is not likely they could either kill or capture so formidable a creature; while the prong-horned antelope, which does inhabit their plains, is altogether too swift a creature, to be taken by any wiles a digger might invent. the "big-horn," and the black and white-tailed species of deer, are also too shy and too fleet for their puny weapons; and as to the grizzly bear, the very sight of one is enough to give a digger indian the "chills." if, then, they do not cultivate the ground, nor rear some kind of animals, nor yet live by the chase, how do these people manage to obtain subsistence? the answer to this question appears a dilemma,--since it has been already stated, that their country produces little else than the wild and worthless sage plant. were we speaking of an indian of tropical america, or a native of the lovely islands of the great south sea, there would be no difficulty whatever in accounting for his subsistence,--even though he neither planted nor sowed, tended cattle, nor yet followed the chase. in these regions of luxuriant vegetation, nature has been bountiful to her children; and, it may be almost literally alleged that the loaf of bread grows spontaneously on the tree. but the very reverse is the case in the country of the digger indian. even the hand of cultivation could scarce wring a crop from the sterile soil; and nature has provided hardly one article that deserves the name of food. perhaps you may fancy that the digger is a fisherman; and obtains his living from the stream, by the side of which he makes his dwelling. not even this is permitted to him. it is true that his supposed kindred, the shoshonees, occasionally follow the occupation of fishermen upon the banks of the great snake river,--which at certain seasons of the year swarms with the finest salmon; but the poor digger has no share in the finny spoil. the streams, that traverse his desert home, empty their waters into the briny bosom of the great salt lake,--a true _dead sea_, where neither salmon, nor any other fish could live for an instant. how then does the digger obtain his food? is he a manufacturer,--and perforce a merchant,--who exchanges with some other tribe his manufactured goods for provisions and "raw material?" nothing of the sort. least of all is he a manufacturer. the hare-skin shirt is his highest effort in the line of textile fabrics; and his poor weak bow, and flint-tipped arrows, are the only tools he is capable of making. sometimes he is even without these weapons; and may be seen with another,--a long stick, with a hook at one end,--the hook itself being the stump of a lopped branch, with its natural inclination to that which forms the stick. the object and purpose of this simple weapon we shall presently describe. the digger's wife may be seen with a weapon equally simple in its construction. this is also a stick--but a much shorter one--pointed at one end, and bearing some resemblance to a gardener's "dibble." sometimes it is tipped with horn,--when this can be procured,--but otherwise the hard point is produced by calcining it in the fire. this tool is essentially an implement of husbandry,--as will presently appear. let us now clear up the mystery, and explain how the digger maintains himself. there is not much mystery after all. although, as already stated, his country produces nothing that could fairly be termed _food_, yet there are a few articles within his reach upon which a human being _might_ subsist,--that is, might just keep body and soul together. one of these articles is the bean, or legume of the "mezquite" tree, of which there are many kinds throughout the desert region. they are known to spanish americans as _algarobia_ trees; and, in the southern parts of the desert, grow to a considerable size,--often attaining the dimension of twenty to twenty-five feet in height. they produce a large legume, filled with seeds and a pulp of sweetish-acid taste,--similar to that of the "honey-locust." these beans are collected in large quantities, by the squaw of the digger, stowed away in grass-woven baskets, or sometimes only in heaps in a corner of his cave, or hovel, if he chance to have one. if so, it is a mere wattle of artemisia, thatched and "chinked" with grass. the mezquite seeds, then, are the _bread_ of the digger; but, bad as is the quality, the supply is often far behind the demands of his hungry stomach. for vegetables, he has the "yampa" root, an umbelliferous plant, which grows along the banks of the streams. this, with another kind, known as "kamas" or "quamash" (_camassia esculenta_), is a spontaneous production; and the digging for these roots forms, at a certain season of the year, the principal occupation of the women. the "dibble-like" instrument already described is the _root-digger_. the roots here mentioned, before being eaten, have to undergo a process of cooking. the yampa is boiled in a very ingenious manner; but this piece of ingenuity is not native to the shoshokees, and has been obtained from their more clever kindred, the snakes. the pot is a _wooden one_; and yet they can boil meat in it, or make soup if they wish! moreover, it is only a basket, a mere vessel of wicker-work! how, then, can water be boiled in it? if you had not been already told how it is done, it would no doubt puzzle you to find out. but most likely you have read of a somewhat similar vessel among the chippewa indians,--especially the tribe known as the "assineboins," or stone boilers--who cook their fish or flesh in pots made of birch-bark. the phrase _stone boilers_ will suggest to you how the difficulty is got over. the birch-bark pot is not set over fire; but stones are heated and thrown into it,--of course already filled with water. the hot stones soon cause the water to simmer, and fresh ones are added until it boils, and the meat is sufficiently cooked. by just such a process the "snakes" cook their salmon and deer's flesh,--their wicker pots being woven of so close a texture that not even water can pass through the interstices. it is not often, however, that, the digger is rich enough to have one of these wicker pots,--and when he has, he is often without anything to put into it. the _kamas_ roots are usually baked in a hole dug in the earth, and heated by stones taken from the fire. it requires nearly two days to bake them properly; and then, when taken out of the "oven," the mass bears a strong resemblance to soft glue or size, and has a sweet and rather agreeable taste,--likened to that of baked pears or quinces. i have not yet specified the whole of the digger's larder. were he to depend altogether on the roots and seeds already mentioned, he would often have to starve,--and in reality he often _does_ starve,--for, even with the additional supplies which his sterile soil scantily furnishes him, he is frequently the victim of famine. there may be a bad season of the mezquite-crop, and the bears--who are as cunning "diggers" as he--sometimes destroy his "plantations" of yampa and kamas. he finds a resource, however, in the prairie cricket, an insect--or reptile, you may call it--of the _gryllus_ tribe, of a dark-brown colour, and more like a bug than any other crawler. these, at certain seasons of the year, make their appearance upon the desert plains, and in such numbers that the ground appears to be alive with them. an allied species has of late years become celebrated: on account of a visit paid by vast numbers of them to the mormon plantations; where, as may be remembered, they devastated the crops,--just as the locusts do in africa,--causing a very severe season of famine among these isolated people. it may be remembered also, that flocks of white birds followed the movements of these american locusts,--preying upon them, and thinning their multitudinous hosts. these birds were of the gull genus (_larus_), and one of the most beautiful of the species. they frequent the shores and islands of the rivers of _prairie-land_, living chiefly upon such insects as are found in the neighbourhood of their waters. it was but natural, therefore, they should follow the locusts, or "grasshoppers," as the mormons termed them; but the _pseudo-prophet_ of these deluded people could not suffer to pass such a fine opportunity of proving his divine inspiration: which he did by audaciously declaring that the birds were "heaven-born," and had been sent by the almighty (in obedience to a prayer from him, the prophet) to rid the country of the pest of the grasshoppers! these prairie crickets are of a dark-brown colour,--not unlike the _gryllus migratorius_ of africa, and with very similar habits. when settled thickly upon the ground, the whole surface assumes a darkish hue, as if covered with crape; and when they are all in motion,-creeping to and fro in search of their food,--a very singular effect is produced. at this time they do not take to wing; though they attempt to get out of the way, by making short hops from place to place, and crawling with great rapidity. notwithstanding their efforts to escape, hundreds of them are "squashed" beneath the foot of the pedestrian, or hoofs of the traveller's horse. these crickets, with several bug-like insects of different species, furnish the digger with an important article of food. it may appear a strange provender for a human stomach; but there is nothing unnatural about it,--any more than about the eating of shrimps or prawns; and it will be remembered that the bushmen, and many other tribes of south africa eat the _gryllus migratorius_; while, in the northern part of that same continent, many nations regard them as a proper article of food. though some writers have asserted, that it was the legume of the locust-tree (an acacia) which was eaten by saint john the baptist in the wilderness, it is easily proved that such was not the case. that his food was the locust (_gryllus migratorius_) and wild honey, is strictly and literally true; and at the present day, were you to visit the "wilderness" mentioned by the apostle, you might see people living upon "locusts and wild honey," just as they did eighteen hundred years ago. the diggers _cook_ their crickets sometimes by boiling them in the pots aforementioned, and sometimes by "roasting." they also mix them with the mezquite seeds and pulp,--the whole forming a kind of plum-pudding, or "cricket-pasty,"--or, as it is jocosely termed by the trappers, "cricket-cake." their mode of collecting the grasshoppers is not without some display of ingenuity. when the insects are in abundance, there is not much difficulty in obtaining a sufficient supply; but this is not always the case. sometimes they appear very sparsely upon the plains; and, being nimble in their movements, are not easily laid hold of. only one could be taken at a time; and, by gleaning in this way, a very limited supply would be obtained. to remedy this, the diggers have invented a somewhat ingenious contrivance for capturing them wholesale,--which is effected in the following manner:--when the whereabouts of the grasshoppers has been discovered, a round hole--of three or four feet in diameter, and of about equal depth--is scooped out in the centre of the plain. it is shaped somewhat after the fashion of a kiln; and the earth, that has been taken out, is carried out of the way. the digger community then all turn out--men, women, and children--and deploy themselves into a wide circle, enclosing as large a tract as their numbers will permit. each individual is armed with a stick, with which he beats the sage-bushes, and makes other violent demonstrations: the object being to frighten the grasshoppers, and cause them to move inward towards the pit that has been dug. the insects, thus beset, move as directed,--gradually approaching the centre,--while the "beaters" follow in a circle constantly lessening in circumference. after a time the crickets, before only thinly scattered over the plain,--grow more crowded as the space becomes contracted; until at length the surface is covered with a black moving swarm; and the beaters, still pressing upon them, and driving them onward, force the whole body pellmell over the edges of the pit. bunches of grass, already provided are now flung over them, and upon that a few shovelfuls of earth or sand; and then--horrible to relate!--a large pile of artemisia stalks is heaped upon the top and set on fire! the result is that, in a few minutes, the poor grasshoppers are smoked to death, and parched at the same time--so as to be ready for eating, whenever the _debris_ of the fire has been removed. the prairie cricket is not the only article of the _flesh-meat_ kind, found in the larder of the digger. another animal furnishes him with an occasional meal. this is the "sage-hare," known to hunters as the "sage-rabbit," but to naturalists as the _lepus artemisia_. it is a very small animal,--less in size than the common rabbit,--though it is in reality a true hare. it is of a silvery, or whitish-grey colour-which adapts it to the hue of the _artemisia_ bushes on the stalks and berries of which it feeds. it is from the skins of this animal, that the digger women manufacture the rabbit-skin shirts, already described. its flesh would not be very agreeable to a european palate,--even with the addition of an onion,-for it has the sage flavour to such a degree, as to be as bitter as wormwood itself. an onion with it would not be tasted! but tastes differ, and by the digger the flesh of the sage-hare is esteemed one of the nicest delicacies. he hunts it, therefore, with the greatest assiduity; and the chase of this insignificant animal is to the digger, what the hunt of the stag, the elephant, or the wild boar, is to hunters of a more pretentious ambition. with his bow and arrows he frequently succeeds in killing a single hare; but this is not always so easy,--since the sage-hare, like all of its kind, is shy, swift, and cunning. its colour, closely resembling the hue of the artemisia foliage, is a considerable protection to it; and it can hide among these bushes, where they grow thickly--as they generally do--over the surface of the ground. but the digger is not satisfied with the scanty and uncertain supply, which his weak bow and arrows would enable him to obtain. as in the case of the grasshoppers, he has contrived a plan for capturing the sage-hares by wholesale. this he accomplishes by making a "surround," and driving the animals, not into a _pit_, but into a _pound_. the pound is constructed something after the same fashion as that used by the chippewas, and other northern indians, for capturing the herds of reindeer; in other words, it is an enclosure, entered by a narrow mouth--from the _jaws_ of which mouth, two fences are carried far out into the plain, in a gradually diverging direction. for the deer and other large animals, the fences of the pound--as also those of the funnel that conducts to it, require to be made of strong stakes, stockaded side by side; but this work, as well as the timber with which to construct it, is far beyond the reach of the digger. his enclosure consists of a mere wattle of artemisia stalks and branches, woven into a row of those already standing--with here and there a patching of rude nets, made of roots and grass. the height is not over three feet; and the sage-hare might easily spring over it; but the stupid creature, when once "in the pound," never thinks of looking upward; but continues to dash its little skull against the wattle, until it is either "clubbed" by the digger, or impaled upon one of his obsidian arrows. other quadrupeds, constituting a portion of the digger's food, are several species of "gophers," or sand-rats, ground-squirrels, and marmots. in many parts of the great basin, the small rodents abound: dwelling between the crevices of rocks, or honeycombing the dry plains with their countless burrows. the digger captures them by various wiles. one method is by shooting them with blunt arrows; but the more successful plan is, by setting a trap at the entrance to their earthen caves. it is the "figure of 4 trap," which the digger employs for this purpose, and which he constructs with ingenuity,--placing a great many around a "warren," and often taking as many as fifty or sixty "rats" in a single day! in weather too cold for the gophers to come out of their caves, the digger then "digs" for them: thus further entitling him to his special appellation. that magnificent bird, the "cock of the plains," sometimes furnishes the digger with "fowl" for his dinner. this is a bird of the grouse family (_tetrao urophasianus_), and the largest species that is known,-exceeding in size the famed "cock of the woods" of northern europe. a full-fledged cock of the plains is as large as an eagle; and, unlike most of the grouse kind, has a long, narrow body. his plumage is of a silvery grey colour--produced by a mottle of black and white,--no doubt, given him by a nature to assimilate him to the hue of the artemisia,-amidst which he habitually dwells, and the berries of which furnish him with most of his food. he is remarkable for two large _goitre-like_ swellings on the breast, covered with a sort of hair instead of feathers; but, though a fine-looking large bird, and a grouse too, his flesh is bitter and unpalatable--even more so than that of the sage-hare. for all that, it is a delicacy to the digger, and a rare one; for the cock of the plains is neither plentiful, nor easily captured when seen. there are several other small animals--both quadrupeds and birds-inhabiting digger-land, upon which an occasional meal is made. indeed, the food of the digger is sufficiently varied. it is not in the quality but the quantity he finds most cause of complaint: for with all his energies he never gets enough. in the summer season, however, he is less stinted. then the berries of the buffalo-bush are ripe; and these, resembling currants, he collects in large quantities,--placing his rabbit-skin wrapper under the bush, and shaking down the ripe fruit in showers. a _melange_ of prairie crickets and buffalo-berries is esteemed by the digger, as much as would be the best specimen of a "currant-cake" in any nursery in christendom! the digger finds a very curious species of edible bug, which builds its nest on the ledges of the cliffs,--especially those that overhang a stream. these nests are of a conical or pine-apple shape, and about the size of this fruit. this bug,--not yet classified or described by entomologists,--is of a dark-brown colour, about the size of the ordinary cockroach; and when boiled is considered a proper article of food,--not only by the unfastidious diggers, but by indians of a more epicurean _gout_. besides the yampa and kamas, there are several other edible roots found in the digger country. among others may be mentioned a species of thistle (_circium virginiarum_),--the root of which grows to the size of an ordinary carrot, and is almost as well flavoured. it requires a great deal of roasting, or boiling, before it is sufficiently cooked to be eaten. the _kooyah_ is another article of food still more popular among digger gourmands. this is the root of the _valeriana edulis_. it is of a bright-yellow colour, and grows to a considerable size. it has the characteristic odour of the well-known plant; but not so strong as in the prepared substance of _valerian_. the plant itself does not grow in the arid soil of the desert, but rather in the rich fertile bottoms of the streams, or along the shores of marshy lakes,--in company with the kamas and yampa. it is when these roots are in season, that the shoshokees most frequent such localities; and, indeed, this same season is the time when all other articles of digger food are plenteous enough,--the summer. the winter months are to him the "tight times." in some parts of the desert country, as already observed, grow species of pines, with edible cones,--or rather edible seeds which the cones contain. these seeds resemble nuts, and are about the size of the common filberts. more than one species of pine produces this sort of food; but in the language of the spanish californians and new mexicans, they are all indifferently termed _pinon_, and the seeds simply _pinones_, or "pinons." where these are within the reach of the digger,--as they are in some districts,--he is then well provided for; since the pinons, when roasted, not only form an agreeable and nutritious article of food, but can be stored up as a winter stock,--that will keep for a considerable time, without danger of spoiling, or growing too stale. such is the _commissariat_ of the digger indian; and, poor in quality though it be, there are times when he cannot obtain a sufficient supply of it. at such times he has recourse to food of a still meaner kind,-to roots, scarce eatable, and even to the seeds of several species of grass! worms, grubs, the _agama comuta_, or "horned-frog of the prairies," with other species of lizards, become his sole resource; and in the search and capture of these he occupies himself from morning to night. it is in this employment that he finds use for the long sapling, with the hooked end upon it,--the hook being used for dragging the lizards out of clefts in the rocks, within which they have sought shelter. in the accomplishment of this, the digger displays an adroitness that astonishes the traveller: often "jerking" the reptile out of some dark crevice within which it might be supposed to have found a retreat secure from all intruders. many other curious habits might be related of this abject and miserable race of human beings; but perhaps enough has been detailed, to secure them a place in the list of our "odd people." chapter fourteen. the guaraons, or palm-dwellers. young reader, i may take it for granted that you have heard of the great river orinoco,--one of the largest rivers not only of south america, but in the world. by entering at its mouth, and ascending to its source, you would have to make a journey of about one thousand five hundred miles; but this journey, so far from being direct, or in a straight line, would carry you in a kind of spiral curve,--very much like the figure 6, the apex of the figure representing the mouth of the river. in other words, the orinoco, rising in the unexplored mountains of spanish guiana, first runs eastward; and then, having turned gradually to every point of the compass, resumes its easterly course, continuing in this direction till it empties its mighty flood into the atlantic ocean. not by one mouth, however. on the contrary, long before the orinoco approaches the sea, its channel separates into a great many branches (or "canos," as they are called in the language of the country), each of which, slowly meandering in its own course, reaches the coast by a separate mouth, or "boca." of these canos there are about fifty, embracing within their ramifications a "delta" nearly half as large as england! though they have all been distinguished by separate names, only three or four of them are navigable by ships of any considerable size; and, except to the few pilots whose duty it is to conduct vessels into that main channel of the river, the whole delta of the orinoco may be regarded as a country still unexplored, and almost unknown. indeed, the same remark might be made of the whole river, were it not for the magnificent monument left by the great traveller von humboldt,--whose narrative of the exploration of the orinoco is, beyond all comparison, the finest book of travels yet given to the world. to him are we chiefly indebted for our knowledge of the orinoco; since the spanish nation, who, for more than three centuries, have held undisputed possession of this mighty stream, have left us scarce a line about it worth either credit or record. it is now more than half a century, since the date of humboldt's "personal narrative;" and yet, strange to say, during all that period, scarce an item has been added to our knowledge of the orinoco, beyond what this scientific traveller had already told us. indeed, there is not much to say: for there has been little change in the river since then,--either in the aspect of nature, or the condition of man. what change there has been possesses rather a retrograde, than a progressive character. still, now, as then, on the banks of the orinoco, we behold a languid commerce,--characteristic of the decaying spano-american race,--and the declining efforts of a selfish and bigoted missionary zeal, whose boasted aim of "christianising and civilising" has ended only in producing a greater brutalisation. after three centuries of _paternosters_ and bell-ringing, the red savage of the orinoco returns to the worship of his ancestral gods,--or to no worship at all,--and for this backsliding he can, perhaps, give a sufficient reason. pardon me, young reader, for this digression. it is not my purpose to discuss the polemical relations of those who inhabit the banks of the orinoco; but to give you some account of a very singular people who dwell near its mouth,--upon the numerous canos, already mentioned as constituting its delta. these are the "guaraons,"--a tribe of indians,--usually considered as a branch of the great carib family, but forming a community among themselves of seven or eight thousand souls; and differing so much from most other savages in their habits and mode of life, as fairly to entitle them to the appellation of an "odd people." the orinoco, like many other large rivers, is subject to a periodical rise and fall; that is, once every year, the river swells to a great height above its ordinary level. the swelling or "flood" was for a long time supposed to proceed from the melting of snow upon the cordilleras of the andes,--in which mountains several of the tributaries of the orinoco have their rise. this hypothesis, however, has been shown to be an incorrect one: since the main stream of the orinoco does not proceed from the andes, nor from any other snowcapped mountains; but has its origin, as already stated, in the _sierras_ of guiana. the true cause of its periodical rising, therefore, is the vast amount of rain which falls within the tropics; and this is itself occasioned by the sun's course across the torrid zone, which is also the cause of its being periodical or "annual." so exact is the time at which these rains fall, and produce the floods of the orinoco, that the inhabitants of the river can tell, within a few days, when the rising will commence, and when the waters will reach their lowest! the flood season very nearly corresponds to our own summer,--the rise commencing in april, and the river being at its maximum height in august,--while the minimum is again reached in december. the height to which the orinoco rises has been variously estimated by travellers: some alleging it to be nearly one hundred feet; while others estimate it to be only fifty, or even less! the reason of this discrepancy may be, that the measurements have been made at different points,--at each of which, the actual height to which the flood attains, may be greater or less than at the others. at any one place, however, the rise is the same--or very nearly so--in successive years. this is proved by observations made at the town of angostura,--the lowest spanish settlement of any importance upon the orinoco. there, nearly in front of the town, a little rocky islet towers up in the middle of the river; the top of which is just fifty feet above the bed of the stream, when the volume of water is at its minimum. a solitary tree stands upon the pinnacle of this rock; and each year, when the water is in full flood, the tree alone is visible,--the islet being entirely submerged. from this peculiar circumstance, the little islet has obtained the name of "orinocometer," or measurer of the orinoco. the rise here indicated is about fifty feet; but it does not follow from this, that throughout its whole course the river should annually rise to so great a height. in reality it does not. at angostura, as the name imports, the river is _narrowed_ to less than half its usual width,--being there confined between high banks that impinge upon its channel. above and below, it widens again; and, no doubt, in proportion to this widening will the annual rise be greater or less. in fact, at many places, the width of the stream is no longer that of its ordinary channel; but, on the contrary, a vast "freshet" or inundation, covering the country for hundreds of miles,--here flooding over immense marshes or grassy plains, and hiding them altogether,-there flowing among forests of tall trees, the tops of which alone project above the tumult of waters! these inundations are peculiarly observable in the _delta_ of the orinoco,--where every year, in the months of july and august, the whole surface of the country becomes changed into a grand fresh-water sea: the tops of the trees alone rising above the flood, and proclaiming that there is _land_ at the bottom. at this season the ordinary channels, or _canos_, would be obliterated; and navigation through them become difficult or impossible, but for the tree-tops; which, after the manner of "buoys" and signal-marks, serve to guide the pilots through the intricate mazes of the "bocas del orinoco." now it is this annual inundation, and the semi-submergence of these trees under the flood, that has given origin to the peculiar people of whom we are about to speak,--the guaraons; or, perhaps, we should rather say, from these causes have arisen their strange habits and modes of life which entitle them to be considered an "odd people." during the period of the inundation, if you should sail up the southern or principal cano of the orinoco,--known as the "boca de navios," or "ships' mouth,"--and keep your face to the northward, you would behold the singular spectacle of a forest growing out of the water! in some places you would perceive single trees, with the upper portion of their straight, branchless trunks rising vertically above the surface, and crowned by about a dozen great fan-shaped leaves, radiating outwards from their summits. at other places, you would see many crowded together, their huge fronds meeting, and forming close clumps, or "water groves," whose deep-green colour contrasts finely as it flings its reflection on the glistening surface below. were it night,--and your course led you through one of the smaller canos in the northern part of the delta,--you would behold a spectacle yet more singular, and more difficult to be explained; a spectacle that astounded and almost terrified the bold navigators, who first ventured to explore these intricate coasts.--you would not only perceive a forest, growing out of the water; but, high up among the tops of the trees, you would behold blazing fires,--not the conflagration of the trees themselves, as if the forest were in flames,--but fires regularly built, glowing as from so many furnaces, and casting their red glare upwards upon the broad green leaves, and downwards upon the silvery surface of the water! if you should chance to be near enough to these fires, you would see cooking utensils suspended over them; human forms, both, of men and women seated or squatting around them; other human forms, flitting like shadows among the tops of the trees; and down below, upon the surface of the water, a fleet of canoes (_periaguas_), fastened with their mooring-ropes to the trunks. all this would surprise you,--as it did the early navigators,--and, very naturally, you would inquire what it could mean. fires apparently suspended in the air! human beings moving about among the tops of the trees, talking, laughing, and gesticulating! in a word, acting just as any other savages would do,--for these human beings _are_ savages,--amidst the tents of their encampment or the houses of their village. in reality it is a village upon which you are gazing,--a village suspended in the air,--a village of the guaraon indians! let us approach nearer; let us steal into this water village--for it would not be always safe to enter it, except by stealth--and see how its singular habitations are constructed, as also in what way their occupants manage to get their living. the village under our observation is now,--at the period of inundation,--nearly a hundred miles from shore, or from any dry land: it will be months before the waters can subside; and, even then, the country around will partake more of the nature of a quagmire, than of firm soil; impassable to any human being,--though _not_ to a guaraon, as we shall presently see. it is true, the canoes, already mentioned, might enable their owners to reach the firm shores beyond the delta; and so they do at times; but it would be a voyage too long and too arduous to be made often,--as for the supply of food and other daily wants,--and it is not for this purpose the canoes are kept. no: these guaraons visit terra firma only at intervals; and then for purposes of trade with a portion of their own and other tribes who dwell there; but they permanently reside within the area of the inundated forests; where they are independent, not only of foreign aggression, but also for their supply of all the necessaries of life. in these forests, whether flooded or not, they procure everything of which they stand in need,--they there find, to use an old-fashioned phrase, "meat, drink, washing, and lodging." in other words: were the inundation to continue forever, and were the guaraons entirely prohibited from intercourse with the dry land, they could still find subsistence in this, their home upon the waters. whence comes their subsistence? no doubt you will say that fish is their food; and drink, of course, they have in abundance; but this would not be the true explanation. it is true they eat fish, and turtle, and the flesh of the _manatee_, or "fish-cow,"--since the capturing of these aquatic creatures is one of the chief occupations of the guaraons,--but they are ofttimes entirely without such food; for, it is to be observed, that, during the period of the inundations fish are not easily caught, sometimes not at all. at these times the guaraons would starve--since, like all other savages, they are improvident--were it not that the singular region they inhabit supplies them with another article of food,--one that is inexhaustible. what is this food, and from whence derived? it will scarce surprise you to hear that it is the produce of the trees already mentioned; but perhaps you _will_ deem it singular when i tell you that the trees of this great _water-forest_ are all of one kind,--all of the same species,--so that here we have the remarkable fact of a single species of vegetable, growing without care or cultivation, and supplying all the wants of man,--his food, clothing, fuel, utensils, ropes, houses, and boats,--not even drink excepted, as will presently be seen. the name of this wonderful tree? "ita," the guaraons call it; though it is more generally known as "morichi" among the spanish inhabitants of the orinoco; but i shall here give my young reader an account of it, from which he will learn something more than its name. the _ita_ is a true palm-tree, belonging to the genus _mauritia_; and, i may remark, that notwithstanding the resemblance in sound, the name of the genus is not derived from the words "morichi," "murichi," or "muriti," all of which are different indian appellations of this tree. _mauritia_ is simply a latinised designation borrowed from the name of prince maurice of nassau, in whose honour the genus was named. the resemblance, therefore, is merely accidental. i may add, too, that there are many species of _mauritia_ growing in different parts of tropical america,--some of them palms of large size, and towering height, with straight, smooth trunks; while others are only tiny little trees, scarce taller than a man, and with their trunks thickly covered with conical protuberances or spines. some of them, moreover, affect a high, dry soil, beyond the reach of floods; while others do not prosper, except on tracts habitually marshy, or annually covered with inundations. of these latter, the _ita_ is perhaps the most conspicuous; since we have already stated, that for nearly six months of the year it grows literally out of the water. like all its congeners, the ita is a "fan-palm;" that is, its leaves, instead of being _pinnately_ divided, as in most species of palms, or altogether _entire_, as in some few, radiate from the midrib of the leaf-stalk, into a broad palmated shape, bearing considerable resemblance to a fan when opened to its full extent. at the tips these leaflets droop slightly, but at that end where they spring out of the midrib, they are stiff and rigid. the petiole, or leaf-stalk itself, is long, straight, and thick; and where it clasps the stem or trunk, is swollen out to a foot in width, hollowed, or concave on the upper side. a full-grown leaf, with its petiole, is a wonderful object to look upon. the stalk is a solid beam full twelve feet in length, and the leaf has a diameter of nearly as much. leaf and stalk together make a load, just as much as one man can carry upon his shoulders! set about a dozen of these enormous leaves on the summit of a tall cylindrical column of five feet in circumference, and about one hundred in height,--place them with their stalks clasping or sheathing its top,--so that the spreading fans will point in every direction outwards, inclining slightly upwards; do this, and you will have the great _morichi_ palm. perhaps, you may see the trunk swollen at its middle or near the top,--so that its lower part is thinner than above,--but more often the huge stem is a perfect cylinder. perhaps you may see several of the leaves drooping downward, as if threatening to fall from the tree; you may even see them upon the ground where they have fallen, and a splendid ruin they appear. you may see again rising upward out of the very centre of the crown of foliage, a straight, thick-pointed column. this is the young leaf in process of development,--its tender leaflets yet unopened, and closely clasped together. but the fervid tropical sun soon produces expansion; and a new fan takes the place of the one that has served its time and fallen to the earth,--there to decay, or to be swept off by the flood of waters. still more may be noticed, while regarding this noble palm. out of that part of the trunk,--where it is embraced by the sheathing bases of the petioles,--at a certain season of the year, a large spathe will be seen to protrude itself, until it has attained a length of several feet. this spathe is a bract-like sheath, of an imperfect tubular form. it bursts open; and then appears the huge spadix of flowers, of a whitish-green colour, arranged along the flower-stalk in rows,--_pinnately_. it will be observed, moreover, that these spadices are different upon different trees; for it must be remembered that the mauritia palm is _diaecious_,--that is, having the female flowers on one tree, and the male or staminiferous flowers upon another. after the former have glowed for a time in the heat of the sun, and received the fertilising pollen wafted to them by the breeze,--carried by bee or bird, or transported by some unknown and mysterious agency of nature,-the fruits take form and ripen. these, when fully ripe, have attained to the size of a small apple, and are of a very similar form. they are covered with small brown, smooth scales,--giving them somewhat the appearance of fir-cones, except that they are roundish instead of being cone-shaped. underneath the scales there is a thinnish layer of pulp, and then the stone or _nut_. a single spadix will carry carry several hundreds--thousands, i might say--of these nuts; and the whole bunch is a load equal to the strength of two ordinary men! such is the ita palm. now for its uses,--the uses to which it is put by the guaraons. when the guaraon wishes to build himself a habitation, he does not begin by digging a foundation in the earth. in the spongy soil on which he stands, that would be absurd. at a few inches below the surface he would reach water; and he might dig to a vast depth without finding firm ground. but he has no idea of laying a foundation upon the ground, or of building a house there. he knows that in a few weeks the river will be rising; and would overtop his roof, however high he might make it. his foundation, therefore, instead of being laid in the ground, is placed far above it,--just so far, that when the inundation is at its height the floor of his dwelling will be a foot or two above it. he does not take this height from guesswork. that would be a perilous speculation. he is guided by certain marks upon the trunks of palm-trees,--notches which he has himself made on the preceding year, or the natural watermark, which he is able to distinguish by certain appearances on the trees. this point once determined, he proceeds to the building of his house. a few trunks are selected, cut down, and then split into beams of sufficient length. four fine trees, standing in a quadrangle, have already been selected to form the corner-posts. in each of these, just above the watermark, is cut a deep notch with a horizontal base to serve as a rest for the cross-beams that are to form the foundation of the structure. into these notches the beams are hoisted,--by means of ropes,--and there securely tied. to reach the point where the platform is to be erected--sometimes a very high elevation--ladders are necessary; and these are of native manufacture,--being simply the trunk of a palm-tree, with notches cut in it for the toes of the climber. these afterwards serve as a means of ascending and descending to the surface of the water, during the period of its rise and fall. the main timbers having been firmly secured in their places, cross-beams are laid upon them, the latter being either pieces of the split trunks, or, what is usually easier to obtain, the petioles of the great leaves,--each of which, as already stated, forms of itself a large beam, twelve feet in length and from six to twelves inches in breadth. these are next secured at both ends by ropes of the palm fibre. next comes a layer of palm-leaves, the strong, tough leaflets serving admirably as laths to uphold the coating of mud, which is laid thickly over them. the mud is obtained from below, without difficulty, and in any quantity required; and when trowelled smooth, and dry,--which it soon becomes under the hot sun,--constitutes an excellent floor, where a fire may be kindled without danger of burning either the laths or joists underneath. as yet the guaraon has completed only the floor of his dwelling, but that is his principal labour. he cares not for walls,--neither sides nor gables. there is no cold, frosty weather to chill him in his tropical home,--no snow to be kept out. the rain alone, usually falling in a vertical direction, has to be guarded against; and from this he secures himself by a second platform of lighter materials, covered with mats, which he has already woven for the purpose, and with palm-leaflets, so placed as to cast off the heaviest shower. this also shelters him against the burning sun,--an enemy which he dreads even more than the rain. his house is now finished; and, with the exception of the mud floor, is all of ita palm,--beams, cross-timbers, laths, ropes, and mats. the ropes he has obtained by stripping off the epidermis of the full-grown leaflets, and then twisting it into cordage of any thickness required. for this purpose it is equal to hemp. the mats he has made from the same material,--and well does he, or rather his wife--for this is usually the work of the females--know how to plait and weave them. having completed the building of his aerial dwelling, the guaraon would eat. he has fish, which has been caught in the neighbouring cano,-perhaps turtle,--perhaps the flesh of the manatee, or the alligator,-for his palate is by no means of a delicate fineness, and will not refuse a steak from the tail of the american crocodile. but when the flood time is on, fish become scarce, or cannot be had at all,--no more can turtles, or sea-cows, or alligators. besides, scarce or plenty, something else is wanted to vary the diet. bread is wanted; and for this the guaraon has not far to go. the ita again befriends him, for he finds, upon splitting open its trunk, a large deposit of medullary pith or fecula; which, when submitted to the process of bruising or grating, and afterwards stirred in water, forms a sediment at the bottom of the vessel, a substance not only eatable, but equal in excellence to the well-known produce of the _sago_ palm. this farinaceous pith, formed into cakes and roasted over the fire,--the fuel being supplied by leaves and leaf-stalks,--constitutes the _yuruma_,--the daily bread of the guaraon. the yuruma, or rather the sago out of which it is made, is not obtainable at all times. it is the male palm which produces it; and it must be extracted just as the tree is about to expand its spadix of flowers. the same curious fact is observed with regard to the _maguey_, or great american aloe, which produces the drink called "pulque." to procure the sap in any considerable quantity, the maguey must be tapped just on that day when the flower-stalk is about to shoot upward from among the leaves. the guaraon, having eaten his yuruma, would drink. does he have recourse to the water which flows in abundance beneath his dwelling? no. on ordinary occasions he may quench his thirst in that way; but he wishes for some beverage more cheering. again the ita yields it without stint, and even gives him a choice. he may tap the trunk, and draw forth the sap; which, after being submitted to a process of fermentation, becomes a wine,--"murichi wine," a beverage which, if the guaraon be so inclined, and drink to excess, will make him "as drunk as a lord!" but he may indulge in a less dangerous, and more delicate drink, also furnished by his favourite ita. this he obtains by flinging a few of the nuts into a vessel of water, and leaving them awhile to ferment; then beating them with a pestle, until the scales and pulp are detached; and, lastly, passing the water through a sieve of palm fibre. this done, the drink is ready to be quaffed. for all these purposes tools and utensils are required, but the ita also furnishes them. the trunk can be scooped out into dishes; or cut into spoons, ladles, and trenchers. the flower "spathes" also gives him cups and saucers. iron tools, such as hatchets and knives, he has obtained from commerce with europeans; but, before their arrival in the new world, the guaraon had his hatchet of flint, and his knife-blade of obsidian; and even now, if necessary, he could manage without metal of any kind. the bow and arrows which he uses are obtained from the tough, sinewy petiole of the leaf; so is the harpoon spear with which he strikes the great manatee, the porpoise, and the alligator; the canoe, light as cork, which carries him through the intricate channels of the delta, is the hollow trunk of a morichi palm. his nets and lines, and the cloth which he wears around his loins, are all plaited or woven from the young leaflets before they have expanded into the fan-like leaf. like other beings, the guaraon must at times sleep. where does he stretch his body,--on the floor?--on a mat? no. he has already provided himself with a more luxurious couch,--the "rede," or hammock, which he suspends between two trees; and in this he reclines, not only during the night, but by day, when the sun is too hot to admit of violent exertion. his wife has woven the hammock most ingeniously. she has cut off the column of young leaves, that projects above the crown of the morichi. this she has shaken, until the tender leaflets become detached from each other and fall apart. each she now strips of its outer covering,--a thin, ribbon-like pellicle of a pale-yellow colour,-which shrivels up almost like a thread. these she ties into bundles, leaving them to dry awhile; after which she spins them into strings, or, if need be, twists them into larger cords. she then places two horizontal rods or poles about six feet apart, and doubles the string over them some forty or fifty times. this constitutes the _woof_; and the _warp_ is obtained by cross strings twisted or tied to each of the longitudinal ones, at intervals of seven or eight inches. a strong cord, made from the epidermis of the full-grown leaves, is now passed through the loop of all the strings, drawn together at both ends, and the poles are then pulled out. the hammock, being finished and hung up between two trees, provides the naked indian with a couch, upon which he may repose as luxuriantly as a monarch on his bed of down. thus, then, does a single tree furnish everything which man, in his primitive simplicity, may require. no wonder that the enthusiastic missionaries have given to the morichi palm the designation of "arbol de vida" (tree of life). it may be asked why does the guaraon live in such a strange fashion,-especially when on all sides around him there are vast tracts of _terra firma_ upon which he might make his dwelling, and where he could, with far less difficulty, procure all the necessaries, and many of the luxuries of life? the question is easily answered; and this answer will be best given by asking others in, return. why do the esquimaux and laplanders cling to their inhospitable home upon the icy coasts of the arctic sea? why do tribes of men take to the cold, barren mountains, and dwell there, within sight of lovely and fertile plains? why do others betake themselves to the arid steppes and dreary recesses of the desert? no doubt the guaraon, by powerful enemies forced from his aboriginal home upon the firm soil, first sought refuge in the marshy flats where we now encounter him: there he found security from pursuit and oppression; there--even at the expense of other luxuries--he was enabled to enjoy the sweetest of fill,--the luxury of liberty. what was only a necessity at first, soon became a habit; and that habit is now an essential part of his nature. indeed, it is not so long since the necessity itself has been removed. even at the present hour, the guaraon would not be secure, were he to stray too far from his sheltering marshes,--for, sad though it be to say so, the poor indian, when beyond the protection of his tribe, is in many parts of south america still treated as a slave. in the _delta_ he feels secure. no slave-hunter,--no enemy can follow him there. even the foeman of his own race cannot compete with him in crossing the wide flats of spongy quagmire,--over which, from long habit, he is enabled to glide with the lightness and fleetness of a bird. during the season of overflow, or when the waters have fallen to their lowest, he is equally secure from aggression or pursuit; and, no doubt, in spite of missionary zeal,--in spite of the general progress of civilisation,--in this savage security he will long remain. chapter fifteen. the laplanders. one of the oldest "odd" people with which we are acquainted are the laps or laplanders. for many centuries the more civilised nations of europe have listened to strange accounts, told by travellers of these strange people; many of these accounts being exaggerated, and others totally untrue. some of the old travellers, being misled by the deer-skin dresses worn by the laps, believed, or endeavoured to make others believe, that they were born with hairy skins like wild beasts; and one traveller represented that they had only a single eye, and that in the middle of the breast! this very absurd conception about a one-eyed people gained credit, even so late as the time of sir walter raleigh,-with this difference, that the locality of these gentry with the odd "optic" was south america instead of northern europe. in the case of the poor laplander, not the slightest exaggeration is needed to render him an interesting study, either to the student of ethnology, or to the merely curious reader. he needs neither the odd eye nor the hairy pelt. in his personal appearance, dress, dwelling, mode of occupation, and subsistence, he is so different from almost every other tribe or nation of people, as to furnish ample matter for a monograph at once unique and amusing. i shall not stay to inquire whence originated this odd specimen of humanity. such speculations are more suited to those so-called _learned_ ethnologists, who, resembling the anatomists in other branches of natural history, delight to deal in the mere pedantry of science,-who, from the mere coincidence of a few words, can prove that two peoples utterly unlike have sprung from a common source: precisely as monsieur cuvier, by the examination of a single tooth, has proved that a rabbit was a rhinoceros! i shall not, therefore, waste time in this way, in hunting up the origin of the miserable laplander; nor does it matter much where he sprang from. he either came from somewhere else, or was created in lapland,-one of the two; and i defy all the philosophers in creation to say which: since there is no account extant of when he first arrived in that cold northern land,--not a word to contradict the idea of his having been there since the first creation of the human race. we find him there _now_; and that is all that we have to do with his origin at present. were we to speculate, as to what races are kindred to him, and to which he bears the greatest resemblance, we should say that he was of either the same or similar origin with the esquimaux of north america, the greenlanders of greenland, and the samoeids, tuski, and other tribes dwelling along the northern shores of asia. among all these nations of little men, there is a very great similarity, both in personal appearance and habits of life; but it would not be safe to say that they all came from one common stock. the resemblances may be the result of a similarity in the circumstances, by which they are surrounded. as for language,--so much relied upon by the _scientific_ ethnologist,--there could scarce be a more unreliable guide. the black negro of carolina, the fair blue-eyed saxon, and the red-skinned, red-polled hibernian, all speak one language; the descendants of all three, thousands of years hence, will speak the same,--perhaps when they are widely scattered apart,--and the superficial philosopher of those future times will, no doubt, ascribe to them all one common origin! language, of itself, is no _proof_ of the natural affinities of two peoples. it is evidence of their once having been in juxtaposition,-not much more. of course when other points correspond, similarity of speech becomes a valuable corroboration. it is not our purpose, then, to inquire whence the laplander came,--only _where_ he is now, and _what_ he is now. where is he now? if you take your map of europe, and draw a line from the gulf of kandalax, in the white sea, to the middle of the loffoden isles, on the norwegian coast, you will cut off the country which is now properly called lapland. the country at present inhabited by the people called laplanders, will be found north of this line. it is a boundary more imaginary than real: for in truth there is no political division known as lapland, nor has there been for hundreds of years. it is said there once was a kingdom of lapland, and a nation of laplanders; but there is no proof that either one or the other ever existed. there was a peculiar people, whom we now style laplanders, scattered over the whole northern part of the scandinavian peninsula, and wandering as far south as the shores of the gulf of bothnia; but, that this people had ever any general compact, or union, deserving the name of government or nation, there is no proof. there is no evidence that they ever enjoyed a higher degree of civilisation than they do at present; and that is not one iota higher than exists among the esquimaux of north america,-notwithstanding the advantage which the laplander has in the domestication of a ruminating quadruped and a knowledge of the christian religion. the tract of country which i have above assigned to the modern laplander, is to be regarded rather as meaning that portion of northern europe, which can scarcely be said to be in the occupation of any other people. true laplanders may be found dwelling, or rather wandering, much to the south of the line here indicated,--almost to the head of the bothnian gulf,--but in these southern districts, he no longer has the range clear to himself. the finn--a creature of a very different kind-here meets him; constantly encroaching as a colonist on that territory which once belonged to the laplander alone. it becomes necessary to say a few words about the names we are using: since a perfect chaos of confusion has arisen among travellers and writers, in relation to the nomenclature of these two people,--the finns and the laplanders. in the first place, then, there is in reality no such a people as laplanders in northern europe. the word is a mere geographical invention, or "synonyme," if you wish. the people to whom we apply the name, call themselves "samlash." the danes and norwegians term them "_finns_;" and the swedes and russians style them "_laps_." the people whom _we_ know as finns--and who are not laplanders in any sense--have received the appellation of finns erroneously. these finns have for a long period been making progress, as colonists, in the territory once occupied by the true finns, or laplanders; and have nothing in common with these last people. they are agriculturists, and dwell in fixed settlements; not pastoral and nomadic, as the laplanders eminently are. besides, there are many other essential points of difference between the two,--in mind,--in personal appearance, in habits, in almost everything. i am particular upon this point,--because the wrong application of the name _finns_, to this last-mentioned race, has led writers into a world of error; and descriptions given of them and their habits have been applied to the people who are the subjects of the present chapter,-leading, of course, to the most erroneous conclusions. it would be like exhibiting the picture of a caffre as the likeness of a hottentot or bushman! the finns, as geography now designates them,--and which also assigns to them a country called finland,--are, therefore, not finns at all. where, they are found in the old lapland territory as colonists, they are called _quans_; and this name is given them alike by russians, swedes, danes, and norwegians. to return to our laplanders, who are the true finns. i have said that they are called by different names; by the danes and norwegians "finns," and by the russians and swedes simply "laps." no known meaning is attached to either name; nor can it be discovered at what period either came into use. enough to know that these are the designations by which they are now known to those four nations who have had chiefly to deal with them. since these people have received so many appellations,--and especially one that leads to much confusion,--perhaps it is better, for geography's sake, to accept the error: to leave the _new_ finns to their usurped title, and to give the old finns that distinctive name by which they are best known to the world, viz _laplanders_. so long as it is remembered, that this is merely a geographical title, no harm can result from employing it; and should the word _finns_ occur hereafter, it is to be considered as meaning not the finns of norwegian finmark, but the quans of finland, on the gulf of bothnia. i have spoken of the country of the laplanders, as if they _had_ a country. they have not. there is a territory in which they dwell; but it is not theirs. long, long ago the lordship of the soil was taken from them; and divided between three powerful neighbours. russia took her largest slice from the east; sweden fell in for its southern part; and norway claimed that northern and western portion, lying along the atlantic and arctic oceans. this afterwards became the property of denmark: when norway herself ceased to be independent. the country, therefore, which i have defined as lapland, in modern times is so styled, merely because it is almost exclusively occupied by these people: it not being worth the while of their danish, swedish, or russian masters to colonise it. all three, however, claim their share of it,--have their regular boundary lines,--and each mulcts the miserable laplander of an annual tribute, in the shape of a small poll-tax. each, too, has _forced_ his own peculiar views of christianity on those within his borders,--the russian has shaped the lap into a greek christian; while, under swedish influence, he is a disciple of martin luther. his faith, however, is not very rational, one way or the other; and, in out-of-the-way corners of his chaotic country, he still adheres to some of his old mythic customs of sorcery and witchcraft: in other words, he is a "pagan." before proceeding to describe the laplander, either personally or intellectually, a word about the country in which he dwells. i have called it a _chaotic_ land. it has been described as a "huge congeries of frightful rocks and stupendous mountains, with many pleasant valleys, watered by an infinite number of rivulets, that run into the rivers and lakes." some of the lakes are of large extent, containing a countless number of islands; one alone--the lake enaro--having so many, that it has been said no laplander has lived long enough to visit each particular island. there is a great variety in the surface of the land. in some parts of the country the eye rests only on peaks and ridges of bleak, barren mountains,--on summits covered with never-melting snow,-on bold, rocky cliffs or wooded slopes, where only the firs and birches can flourish. in other parts there are dusky forests of pines, intersected here and there by wide morasses or bogs. elsewhere, are extensive tracts of treeless champaign, covered with the white reindeer-lichen, as if they were under a fall of snow! during summer there are many green and beautiful spots, where even the rose sheds its fragrance around, and many berry-bearing bushes blossom brightly; but the summer is of short duration, and in those parts where it is most attractive, the pest of gnats, mosquitoes, and gadflies, renders the country uninhabitable to the laplander. we shall see presently, that, in the summer months, he flees from such lowland scenes, as from a pestilence; and betakes himself and his herd to the bleak, barren mountains. having given this short sketch of the country inhabited by the laplander, we proceed to a description of himself. he is short,--not more than five feet five inches, average height,-squat and stoutish,--rarely corpulent,--though there is a difference in all these respects, between those who inhabit different parts of the country. the laps of norwegian lapland are taller than those in the russian and swedish territory. his features are small, his eyes elongated, or slit-like, as among the mongolian tribes; his cheek-bones prominent,--his mouth large and wide, and his chin sharply-pointed. his hair is black, or sometimes brownish; though among some tribes settled along the coasts light hair is not uncommon. it is probable that this may have originated in some admixture of blood with norwegian, russian, and other fishermen who frequent these coasts. the laplander has little or no beard; and in this respect he resembles the greenlander and esquimaux. his body is ill-made, bony and muscular, and stronger than would be expected from his pigmy stature. he is active, and capable of enduring extreme fatigue and privation; though it is a mistake to suppose that he is the agile creature he has been represented,--this error arising no doubt from the surprising speed with which habit has enabled him to skate over the frozen snow; and which, to a person unused to it, would appear to prove an extraordinary degree of agility. the hands and feet are small,--another point in common with the esquimaux. the laplander's voice is far from being a manly one. on the contrary, it is of small compass, weak, and of a squeaking tone. the complexion of the laplander is generally regarded as _dark_. its natural hue is perhaps not much darker than that of the norwegian. certainly not darker than many portuguese or spaniards; but, as he is seen, he appears as swarth as an indian. this, however, arises from the long and almost constant exposure to smoke: in the midst of which the miserable creature spends more than half of his time. it may again be observed, that those dwelling on the seashore are of lighter complexion; but perhaps that is also due to a foreign admixture. we have given a picture of the laplander's person; now a word or two about his mind. both his intellectual and moral man are peculiar,--even more so than his physical,--differing essentially from that of all the other nationalities with which he is brought in contact. he is cold-hearted, selfish, and morose. to love he is almost a stranger; and when such a feeling does exist within his bosom, it is rather as a spark than a passion. his courtship and marriage are pure matters of business,-rarely having any other motive than self-interest. one woman will do for his wife wife as well as another; and better, if she be richer by half a dozen reindeer! hospitality is a virtue equally unknown to him. he wishes to see no stranger; and even wonders why a stranger should stray into his wild, bleak country. he is ever suspicious of the traveller through his land; unless that traveller chance to come in the guise of a russian or norwegian merchant, to exchange strong brandy for his reindeer-skins, or the furs of the animals he may have trapped. in his dealings he exhibits a sufficient degree of cunning,--much more than might be expected from the low standard of his intellect; and he will take no paper-money or any kind of "scrip" in exchange. this caution, however, he has acquired from a terrible experience, which he once had in dealing with paper-money; and he is determined that the folly shall never again be repeated. even in _his_ out-of-the-way corner of the globe, there was at one time a bank speculation of the "anglo-bengalee" character, of which the poor lap was made an especial victim. he has no courage whatever. he will not resist oppression. the stranger--russ or norwegian--may strike, kick, or cuff him,--he will not return the blow. belike he will burst into tears! and yet, under some circumstances, he shows a feeling akin to courage. he is cool in moments of danger from the elements, or when opposed to fierce animals, as the wolf or the bear. he is also capable of enduring fatigue to an extreme degree; and it is known historically that he was once warlike,--at least much more so than at present. _now_, there is not a drop of warrior blood in his veins. on the contrary, he is timid and pacific, and rarely quarrels. he carries constantly upon his person a long ugly knife, of norwegian manufacture; but he has never been known to draw it,--never known to commit murder with it. these are certainly virtues; but it is to be feared that with him they owe their origin to timidity and the dread of consequences. now and then he has a quarrel with one of his fellows; but the knife is never used; and the "punishment" consists in giving and receiving various kicks, scratches, pullings of the hair and ears: genuine blows, however, are not attempted, and the long knife never leaves its sheath. in the olden time he was a great believer in witches; in fact, noted for his faith in sorcery. christianity, such as it is, has done much to eradicate this belief; but he is still troubled with a host of superstitions. of filial and parental affection his stock is but scanty. the son shifts for himself, as soon as he is able to do so; and but little anxiety is exhibited about him afterwards. the daughter goes to the highest bidder,--to him who is most liberal in presents of brandy to the parent. jealousy is little known. how could it be felt, where there is no love? one of the worst vices of the laplander is his fondness for drink,-amounting almost to a passion. it is one of his costliest, too: since he often consumes the produce of his industry in its indulgence. his favourite beverage is strong, bad brandy,--a staple article kept by the traders, to exchange for the commodities which the country affords. as these men care little for the result, and have a far greater influence over the laplander than either the government officials, or the lazy, timeserving missionaries, it is not probable that temperance will ever be introduced among these wretched people. fortunately, only the coast laplanders are at all times subject to this influence. the mountain people or those who dwell most of their time in the interior, are too distant from the "tap" to be so grievously affected by it. it is only on their short annual visits to the merchant stations on the coast, that they fall extensively into the jaws of this degrading vice. the dress of the laplander is now to be described. the men wear on their heads tall caps, of a conical form, usually of a cloth called _wadmal_, or some species of kersey furnished by the merchants. this cap has a tassel at top, and around the bottom is turned up several inches,--where it is strengthened by a band of reindeer-skin, or the fur of the otter. the coat is a loose garment or frock: made of the skin of the reindeer, with the hairy side out, and fastened around the waist with a broad leathern belt. in this belt is stuck the pointed knife, and a pouch or two, for pipe, tobacco, and spoon, are also suspended from it. breeches of reindeer-skin--the hide of the young fawns--reach to the ankles; and buskins, or rather stockings, of the same material cover the feet. these are gartered over the ends of the breeches, in such a way that no snow can get in; and since there is neither shirt nor drawers worn, we have given every article of a laplander's dress. no. there are the gloves, or mittens, which must not be forgotten,--as they are one of the things most essential to his comfort. these are also the universal deer-hide. simple as is this dress of the lapland men, it is not more simple than that of the lapland women, since both one and the other are exactly alike. a slight difference is observable in the shape of the bonnet; but for the rest, the lady wears the deer-skin frock, the breeches, and boots,--and like her liege lord, she scorns to include linen in her wardrobe. this plain dress, however, is the everyday _winter_ costume. the summer one, and especially upon grand occasions, is somewhat different, and altogether gayer. the shape is much the same; but the tunic or frock is of cloth, sometimes plain, coarse _wadmal_; but in the case of the richer proprietors, of fine coloured cloth,--even scarlet being sometimes worn. no matter what the quality of the cloth, however, the trimmings are always of rich, bright-coloured stuffs; and consist of bands or cords around the skirt, sleeves, and collar, elaborately stitched by the females,--who are in all cases the tailors. the leathern belt, worn with this dress, is loaded with ornaments,--little square and triangular plates of brass or white metal, and often of heavy, solid silver. the belt is an esteemed article,--as much so as his wampum to a north-american savage,--and it requires a large sum to tempt a laplander to part with the precious equipment. a finer cap is also worn, on these summer and holiday occasions. not unfrequently, however, the laplander--especially the mountain lap--sticks to his deer-skin coat, the _paesk_, through all weathers, and throughout all seasons,--when it is too hot simply taking off the belt, and leaving the flaps loose and open. in cold weather, and especially when riding in his sledge, an additional garment is worn. this is a fur "tippet," which covers his shoulders down to the elbows. it is made from the shaggy skin of the brown bear,--with the claws left on and hanging down in front of the breast. before proceeding to describe the mode of life and occupation of the laplander, it is necessary to state that all of the people known as laplanders, are not occupied alike. on the contrary, they may be separated into three distinct classes, according to the lives which they lead; and it is absolutely necessary to make this classification in the illustration of their habits. they are all alike in race and national characteristics,--all laplanders,--and they differ but little in their-style of dressing; but, in other respects, what might be said of one would not be true of the other two. i proceed, therefore, to point out the distinction. the first to be noticed are those we have already mentioned under the title of "coast," or "shore laplanders." the name will give an idea of their _habitat_,--as also their mode of life and subsistence. they dwell along the norwegian coasts, round to the north cape, and even beyond it. they build their _gammes_, or sod-thatched dwellings, in little villages around the numerous creeks and "fiords" that intersect this rock-bound shore. their calling is that of fishermen. they subsist almost entirely upon fish; and live by selling their surplus to the merchants and russian traders. they keep a few sheep, sometimes a poor cow, but rarely own the reindeer. the life they lead is entirely different from that of their kindred, who dwell habitually in the interior. as it differs little from that of poor fishermen elsewhere, i shall dismiss the coast laplander without another word. the second kind of lap who merits our consideration, is that known as the "wood laplander," or, more commonly, "wood lap." he is less known than either of the two other varieties; but, as already stated, he differs from them principally on account of his occupation. his home is to be found upon the extensive plain country of russian lapland, and not near the sea. he is a dweller in the pine and fir-forests; and builds him a rude hut, very similar to the gamme of the coast lap; but he is in possession of some reindeer,--not enough, however, to support him,--and he ekes out a subsistence by fishing in the rivers and fresh-water lakes of the interior, by shooting the elk and wild reindeer, and trapping the fur-bearing animals,--the ermine, the sable, the miniver-squirrel, the badger, glutton, foxes, and wolves. as his calling is chiefly that of a hunter and trapper, and therefore very similar to like occupations in many other parts of the world, we need not enter into details of it here. for the present, therefore, we must _shelve_ the _wood lap_ along with his kinsman of the coast. this brings us to the third class,--the "mountain," or, as he is often called, the "reindeer laplander:" since it is the possession of this animal that chiefly distinguishes him from the other two classes of his countrymen. his mode of life is altogether different from either,--in fact, resembling theirs in but few particulars. true, he fishes a little, and occasionally does a bit of amateur hunting; but these are mere adjuncts or pastimes. his main support is his antlered flock: it would be more truthful to call it his sole support. by the reindeer lives, by the reindeer he _moves_, by the reindeer he has his being. his life is purely pastoral; he is a nomade,--a wanderer. all the world knows this; but all the world does not know _why_ he wanders. writers have asserted that it was to seek new pasture for his flocks,--the old ground having been eaten bare. nothing of the sort. he leaves the fertile plains, just as the willows are putting forth their succulent shoots,--just as the rich grass begins to spring fresh and green,--and betakes himself to the bleak sides of the mountains. that does not look like seeking for a better pasture. it has nothing to do with it. let us follow him, however, throughout his wanderings,--through the circuit of a single year,--and, perhaps, we shall find out the motive that inducts him into the roving habit. first, then, to be a "reindeer laplander," he must be the owner of one hundred head of deer; fewer than that will be of no use. if he have only fifty, he must sell out, and betake himself to some settlement of quans or norwegians,--there to give his service for hire,--or else turn coast laplander and fisherman,--a calling which he despises. this would be a sinking in the social scale; but, if he has been imprudent or unfortunate, and his flock has got reduced to fifty head, there is no help for it. if he have one hundred, however, he may manage with great economy to rub on; and keep up his character as a _free reindeer lap_. with three hundred he can live comfortably; better with five hundred; but a thousand would render him affluent. with fifteen hundred he would be a grandee; and two thousand would give him the rank of a millionaire! there are very few millionaires in lapland, and not many grandees. proprietors of even a thousand head are scarce; there are more whose herds number from three hundred to five hundred each. and here, i may remark, that there is no government,--no tribal organisation. the owner of each herd is the head of a family; over them he is patriarch, but his power extends no further. it is not even great so far, if there chance to be grown-up unruly sons sharing the common tent. i have used the word tent. that is the reindeer laplander's home,-winter and summer alike. notwithstanding the severity of his clime, he builds no house; and even his tent is of the very rudest kind known among tenting tribes. it consists of some birch saplings set up in the snow, bent towards each other, and then covered over with a piece of coarse cloth,--the _wadmal_. this he prefers to a covering of skins; and obtains it from the norwegian or russ trader in exchange for the latter. the tent, when standing, is only six feet high, and not much more in diameter. in this circumscribed space his whole family, wife, daughters, sons, often a retainer or two, and about a dozen dogs find shelter from the piercing blast,--seated, or lying beside, or on top of one another, higgledy-piggledy, any way they can. there is room found besides for a large iron or brass cooking-pot, some dishes and bowls of birch, a rude stone furnace, and a fire in the middle of the floor. above the fire, a rack forms a shelf for countless tough cheeses, pieces of reindeers' flesh, bowls of milk, bladders of deer's blood, and a multiplicity of like objects. the spring is just opening; the frost has thawed from the trees,--for the winter home is in the midst of a forest,--the ground is bare of snow, and already smiling with a carpet of green, enamelled by many brilliant flowers. it is time, therefore, for the reindeer laplander to decamp from the spot, and seek some other scene less inviting to the eye. you will naturally inquire why he does this? and perhaps you will express some surprise at a man showing so little judgment as to take leave of the fertile plain,--just now promising to yield him a rich pasture for his herds,--and transport his whole stock to the cold declivity of a bleak mountain? yes, it is natural this should astonish you,--not, however, when you have heard the explanation. were he to stay in that plain--in that wood where he has wintered--a month longer, he would run the risk of losing half of his precious herd: perhaps in one season find himself reduced to the necessity of becoming a _coast lap_. the reason is simple,--the great gadfly (_aestrus tarandi_), with numerous other tormentors, are about to spring forth from the morass; and, as soon as the hot sun has blown them into full strength and vitality, commence their work of desolation upon the deer. in a few short days or hours their eggs would be deposited in the skin,--even in the nostrils of the antlered creature,--there to germinate and produce disease and death. indeed, the torment of biting gnats and other insects would of itself materially injure the health and condition of the animals; and if not driven to the mountains, they would "stampede," and go there of their own accord. it becomes a necessity, then, for the reindeer lap to remove his habitation; and, having gathered a few necessary utensils, and packed them on his stoutest bucks, he is off to the mountains. he does not take the whole of his _penates_ along with him. that would be difficult, for the snow is now gone, and he cannot use his proper mode of travelling,--the sledge. this he leaves behind him; as well as all other implements and articles of household use, which he can do without in his summer quarters. the cooking-pot, and a few bowls and dishes, go along with him,--also the tent-cloth, and some skins for bedding. the smaller articles are deposited in panniers of wicker, which are slung over the backs of a number of pack-deer; and, if a balance be required, the infant lap, in its little boat-like cradle, forms the adjusting medium. the journey is often of immense length. there may be highlands near, but these are not to the laplander's liking. nothing will satisfy him but the bold mountain range that overlooks the sea, trending along the whole norwegian coast: only on the declivities of this, or on one of the thousand elevated rocky isles that guard this extensive seaboard, does the laplander believe that his deer will enjoy proper health. he has a belief, moreover, that at least once every year, the reindeer should drink sea-water to keep them in condition. certain it is, that on reaching the sea, these animals rush eagerly into the water, and drink the briny fluid; and yet ever after, during the same season, they refuse to taste it! it is the general opinion that the solitary draught thus taken has the effect of destroying such larvae, as may have already formed in their skins. this journey often costs the laplander great fatigue and trouble. it is not uncommon for him to go two hundred miles to the norwegian coast; for although his habitual home may lie much nearer to the shores of the bothnian gulf, it would not serve his purpose to take his flock there. the forest on that side grows to the water's edge; and the gadfly is as abundant there, as in the wooded districts of the interior. on reaching his destination, the laplander chooses his grazing-ground, sometimes on the mountains of the mainland; but he prefers one of the elevated islets so numerous along the shore. this insures him against all danger from the flies, and also saves him much trouble in herding his deer. the islet may be two miles from the main, or any other land. that does not signify. the reindeer can swim like ducks, and the herd is soon driven over. the wadmal tent is then pitched; and the work of the summer begins. this consists in milking, cheese-making, and looking after the young deer; and a little fishing adds to the keep of the family: for it is at this time that foreign support is most required. the season of summer is with the mountain lap his season of scarcity! he does not dream of killing his deer at this season,--that would be sheer waste,--nor does he drink their milk, only in very little quantity. it goes to the making of cheese, and the owner of the herd contents himself with the whey. butter is not made at all by the reindeer lap, though the quans and norwegians make some. the lap would have no use for it,--since he eats no bread,--and it would not keep so well, nor yet be so safe an article of merchandise as the cheese. the latter he regards as his staple article of profit. he sells it to the coast-merchant: receiving in exchange his favourite dram-stuff, and a few pieces of coarse cloth, or utensils. the merchant is near at hand: for just for this very purpose are several small ports and settlements kept in existence along the otherwise desert shores of norway. deer-skins and dried fish, oils of the seal, furs and pelts of various kinds, have drawn these little settlements to the coast. otherwise they would not be there. when the heat of the summer is over, the reindeer laplander commences his return to his winter abode,--back to the place whence he came. the gadflies are now gone, and he can drive his deer back with safety; and just as he travelled to the coast, he wends his way home again: for it is to be observed that he regards the winter residence as the real home, and the summer one only as a place of temporary sojourn. he does not look upon it, as we at such a season. to him it is no pleasant excursion: rather is it his period of toil and dearth,--his _tightest_ time. once home again, he has nothing to do but erect his wadmal tent and look after his deer,--that now find food upon their favourite lichen. it is buried inches deep under the snow. they care not for that. they can soon uncover the pasture with their broad hoofs; and their keen scent never allows them to scrape up the snow without finding the lichen underneath. upon it they thrive, and at this season are in the best condition for the knife. the laplander now also enjoys life. if rich, he has fresh venison every day; but even if only moderately well off, he "kills" two or three times a week. his mode of slaughtering is original. he sticks his long, knife-blade into the throat of the animal, leaving it there till the creature is dead! this precaution he takes to prevent waste. were he to pull out the blade, the blood would flow and be lost. the knife acts as a stopper to the wound it has made. the blood is preserved and carefully put away,--the bladder being used as the vessel to contain it. you must not imagine that the reindeer lap remains all the winter in one place; on the contrary, he moves repeatedly, always taking his tent and tent-utensils along with him. the tent is as easily set up as taken down. the ground in all sheltered places is, at this season, covered with snow. it is only necessary to shovel it off, clearing a circular space about the size of the ground-plan of the tent. the snow, thus removed, produces a sort of elevated ring or snow-dyke all round the bare spot; and into this the tent-poles are hammered. they are then bent inward, tied near the tops, and the _wadmal_ being laid on as before, the tent is ready for use. fresh branches of evergreen pines, and other trees, are strewed over the floor; and on top of these are laid the deer-skins that serve for beds, chairs, tables, and blankets. these, with the iron cooking-pot, a large iron or brass pail to hold melted snow-water for drinking, and a few other utensils, are the only furniture of the dwelling. i have already stated that the fire is built in the centre of the tent,--on some large stones, forming a rudely-constructed hearth. a hole in the roof is intended for a chimney; but its draught is so bad, that the tent is almost always filled with a cloud of bitter smoke,--so thick as to render objects invisible. in this atmosphere no other european, excepting a lap, could possibly exist; and travellers, passing through the lapland country, have often preferred braving the cold frost of the night air, to being half smothered by the smoke; and have consequently taken shelter under a neighbouring tree. the laplander himself feels but little inconvenienced by the very thickest smoke. habit is everything, and to this habit has he been used from his infancy. his eyes, however, are not so indifferent to the annoyance. these suffer from it; and the consequence is that the eyes of the laplanders are almost universally sore and watery. this is a notable characteristic of the race. smoke, however, is not the sole cause of it. the esquimaux equally suffer from sore eyes; and these, burning oil in their houses instead of wood, are seldom troubled with smoke. more likely it is the snow-glare to which the laplander, as well as the esquimaux, is much exposed, that brings about this copious _watering_ of the eyes. the laplander cooks the reindeer flesh by boiling. a large piece is put into the great family pot, and nothing added but a quantity of water. in this the meat boils and simmers till it is done tender. the oily fat is then skimmed off, and put into a separate vessel; and the meat is "dished" in a large tray or bowl of birch-bark. a piece is then cut off, for each individual of the family; and handed around the circle. it is eaten without bread, and even salt is dispensed with. a dip in the bowl of skim-fat is all the seasoning it gets; and it is washed down with the "liquor" in which it has been boiled, and which is nothing but greasy water, without vegetables or any other "lining." it has the flavour of the fat venison, however; and is by no means ill-tasted. the _angelica_ flourishes in the country of the laplander, and of this vegetable he makes occasional use, not eating the roots, but the stalks and leaves, usually raw and without any preparation. perhaps he is led to use it, by a knowledge of the antiscorbutic properties of the plant. several species of berry-producing bushes also furnish him with an occasional meal of fruit. there are wild currants, the cranberry, whortle, and bilberries. the fruits of these trees do not fall in the autumn, as with us; but remain all winter upon the branches. buried under the snow, they are preserved in perfect condition, until the thaw of the following spring once more brings them into view. at this time they are sweet and mellow; and are gathered in large quantities by the lap women. sometimes they are eaten, as they come from the tree; but it is more usual to make them into a "plum-pudding:" that is, they are mixed with a kind of curdled milk, and stored away in bladders. when wanted, a slice is cut from the mass,--including a piece of the bladder, within which they have now attained to the stiffness and consistence of a "cream-cheese." another great luxury of the laplander, is the reindeer's milk frozen into an "ice." this is easily obtained; and the process consists simply in filling a birchen bowl with milk, and exposing it to the open air during frost. it is soon converted into solid ice; and in this condition will keep perfectly sweet throughout the whole of the winter. as the reindeer are never milked in the depth of the winter season, the laplander takes care, before that period approaches, to lay in a stock of ice-milk: so that he may have a drink of it at all times, by simply setting one of his birchen bowls within reach of the fire. he even makes a merchandise of this article: for the frozen reindeer milk is highly prized by the foreign merchants; who are ready, at any time, to exchange for the delicious article a dram of their devilish fire-water. it is at this season that the laplander moves about, both on foot and in his sledge. he not only travels from place to place, in a circuit of twenty miles,--round the little solitary church which the swedish missionary has built for him,--but he makes an occasional journey to the distant coast. in his sledge, or even afoot, a hundred miles are to him as nothing: for the frozen snow enables him to perform such a distance in an incredibly short time. on his "skis," or snow-skates he could do a hundred miles in a couple of days; even though the paths led him over hills, mountains, lakes, and rivers. all are now alike,--all concealed under the common covering of a deep snow. the lakes and rivers are frozen and bridged for him; and the mountain declivities are rendered smooth and easily traversed,--either by the sledge or the "skis." with the former he would think little of a hundred miles in a single day; and if the occasion were a "killing" one, and relays could be had upon the route, twice that enormous distance he could easily accomplish. the mode of sleigh-travelling by the reindeer laplander, as also his snow-skimming, or skating, have been both often and elaborately described. i have only space here to present the more salient points of the picture. this sleigh or sledge is termed by him "pulka;" but he has three varieties of this article,--two for travelling, and the third for carrying luggage. the two first kinds are nearly alike; and, in fact, differ only in a little extra "furniture," which one of them has upon it,--that is, a covering over the top, to keep more comfortable the feet and legs of the traveller. in other respects it is only the common pulk, being similar to the latter in shape, size, _atelage_, and everything. to get an idea of the laplander's sledge, you must fancy a little boat, about six feet long, and sixteen inches in breadth of beam. this is the width at the stern, where it is broadest; but from the stern it narrows all the way forward, until, on reaching the stem, it has tapered almost to a point. its sides are exactly like those of a boat; and it rests upon a "keel" of about four inches breadth, which keel is the one and only "runner." a strong board boxes up the stern end, in front of which is the seat; and the board itself serves to support the back of the rider. his legs and feet are stretched out longitudinally; filling up the space between the quarter-deck and the "forward" part of the little craft; and, thus fixed, the laplander is ready for the road. in the best class of "pulk"--that used by the russ and swedish traders and travellers--the forward part is covered with a sort of half-deck of skins or leather; but the laplander does not often fancy this. it gives him too much trouble to get out and in; as he is often compelled to do to look after his train of deer. his pulk, therefore, is open from stem to stern; and his deer-skin coverings keep his legs warm enough. only one deer is used; and the mode of harnessing is of primitive simplicity. a band of skin acts as a collar round the neck of the animal; and from the lowest point of this a piece falls downwards below the animal's breast,--striking in on the counter like the pendants of a martingale. to this piece is attached the trace,--there is but one,-which, passing between the forelegs, and afterwards the hind ones, is looped into an iron ring upon the stem of the sledge. upon this trace, which is a strong strap of raw hide or leather, the whole draught-power is exerted. a broad surcingle--usually of cloth, neatly stitched and ornamented--passes round the deer's body. its use is to hold up the trace underneath the belly, and prevent it from dragging the ground, or getting among the animal's feet. a similar band of cloth passes round its neck, giving a fine appearance to the noble creature. a single rein attached to the left horn, or fixed halter-fashion around the deer's head, is all that is necessary to guide it along; the movements of this, aided by the accents of its master's voice, are understood by this well-trained animal. for all that, the deer does not _always_ travel kindly. frequently he takes a fit of obstinacy or anger; and will then turn upon his trainer,--presenting his antlered front in an attitude of attack. on such occasions the lap takes shelter behind his "pulk," raising it in his arms, and holding it as a shield wherewith to defend himself; until he can pacify, or otherwise subdue, the irritated buck. the tumbling of the sledge, and consequent spilling of its load, is a thing of frequent occurrence, owing to the narrow base upon which the vehicle is supported; but the laplander thinks nothing of a trifling mishap of this nature. in a trice the "snow-boat" is righted, the voyager in his seat again, and off over the frozen snow with the speed of lightning. the reindeer can travel nearly twenty english miles an hour! this rate of speed has been proved and tested; and with fresh relays along the route, over four hundred miles might be made in a day. but the same thing could be done with horses,--that is, upon a desperate emergency. the luggage "pulk" of the laplander differs only from the other kinds of sledges in being longer, broader, deeper, and consequently of more capacity to carry goods. it is used for transporting the skins, and other merchantable commodities, from the interior to the trading depots on the coast. the _skis_ or snow-skates require very little description. they are on the same principle as the snow-shoes in use among the north-american indians; though from these they differ materially in construction. they are merely two long pieces of smooth board, a few inches in breadth, and slightly turned up at the ends. one is full six feet,--the right one; the left is about twelve inches shorter. near the middle they are lashed firmly to the feet by strong pieces of hide; and by means of these curious appendages, when the snow is crusted over, the laplander can skim over its surface with great rapidity. he uses a long pole to guide and assist him in his movements; and this pole has a piece of circular board, or a round ball, near its point,--to prevent it from sinking too deeply in the snow. going _up hill_ upon the skis is not so easy,--but the practised skater can ascend even the steep acclivities of the mountains with less difficulty than might be imagined. this is accomplished in zigzag lines,--each leading to a higher elevation. down hill, the course upon _skis_ is rapid almost as the flight of an arrow; and, by means of the long pole, rocks, ravines, and precipices, are shunned with a dexterity that is quite surprising. altogether a laplander, either in his reindeer sledge, or upon his long wooden "skis," is as interesting a sight as may be seen anywhere. after all that has been said, it will appear pretty clearly, that the laplander, though dwelling so very near to civilised lands, is still very far distant from _true civilisation_. chapter sixteen. the andamaners, or mud-bedaubers. on the eastern side of the bay of bengal lies a cluster, or archipelago, of islands known as the "andamans." they form a long string running nearly northward and southward; and with the nicobar group, still further to the south, they appear like a series of stepping-stones connecting cape negrais, in the burmese country, with the island of sumatra. independent of the nicobar islands, the andamans themselves have an extent of several hundred miles in length; while their breadth is nowhere over about twenty miles. until of late the greater portion of the group was supposed to form only one island,--known as the "great andaman;" but, in the year 1792, this was discovered to have a channel across it that divided it into two distinct parts. the discovery of this channel was accidental; and the accident was attended with melancholy consequences. a vessel from madras had entered between the great andaman, and the opposite coast of burmah. this vessel was laden with provisions, intended for the supply of port cornwallis,--a convict settlement, which the british had formed the preceding year on the eastern side of the island. the master of the vessel, not knowing the position of port cornwallis, sent a boat to explore an opening which he saw in the land,--fancying that it might be the entrance to the harbour. it was not this, however; but the mouth of the channel above mentioned. the crew of the boat consisted of two europeans and six lascars. it was late in the afternoon when they stood into the entrance; and, as it soon fell dark upon them, they lost their way, and found themselves carried along by a rapid current that set towards the bay of bengal. the north-east monsoon was blowing at the time with great violence; and this, together with the rapid current, soon carried the boat through the channel; and, in spite of their efforts, they were driven out into the indian ocean, far beyond sight of land! here for eighteen days the unfortunate crew were buffeted about; until they were picked up by a french ship, almost under the equinoctial line, many hundreds of miles from the channel they had thus involuntarily discovered! the sad part of the story remains to be told. when relieved by the french vessel, the two europeans and three of the lascars were still living; the other three lascars had disappeared. shocking to relate, they had been killed and eaten by their companions! the convict settlement above mentioned was carried on only for a few years, and then abandoned,--in consequence of the unhealthiness of the climate, by which the sepoy guards of the establishment perished in great numbers. notwithstanding this, the andaman islands present a very attractive aspect. a ridge of mountains runs nearly throughout their whole extent, rising in some places to a height of between two and three thousand feet. these mountains are covered to their tops by dense forests, that might be called primeval,--since no trace of clearing or cultivation is to be found on the whole surface of the islands; nor has any ever existed within the memory of man, excepting that of the convict settlement referred to. some of the forest trees are of great size and height; and numerous species are intermixed. mangroves line the shores; and prickly ferns and wild rattans form an impenetrable brake on the sides of the hills; bamboos are also common, and the "gambier" or "cutch" tree (_agathis_), from which is extracted the _terra japonica_ of commerce. there are others that yield dyes, and a curious species of screw-pine (_pandanus_),--known as the "nicobar breadfruit." notwithstanding their favourable situation, the zoology of these islands is extremely limited in species. the only quadrupeds known to exist upon them are wild hogs, dogs, and rats; and a variety of the monkey tribe inhabits the forests of the interior. the land-birds are few,-consisting of pigeons, doves, small parrots, and the indian crow; while hawks are seen occasionally hovering over the trees; and a species of humming-bird flies about at night, uttering a soft cry that resembles the cooing of doves. there are owls of several species; and the cliffs that front the coast are frequented by a singular swallow,--the _hirundo esculenta_, whose nests are eaten by the wealthy mandarins of china. along the shores there are gulls, kingfishers, and other aquatic birds. a large lizard of the _guana_ species is common, with several others; and a green snake, of the most venomous description, renders it dangerous to penetrate the jungle thickets that cover the whole surface of the country. in all these matters there is not much that is remarkable,--if we accept the extreme paucity of the zoology; and this is really a peculiarity,-considering that the andaman islands lie within less than eighty leagues of the burman territory, a country so rich in mammalia; considering, too, that they are covered with immense forests, almost impenetrable to human beings, on account of their thick intertwining of underwood and parasitical plants,--the very home, one would suppose for wild beasts of many kinds! and withal we find only three species of quadrupeds, and these small ones, thinly distributed along the skirts of the forest. in truth, the andaman islands and their _fauna_ have long been a puzzle to the zoologist. but longer still, and to a far greater extent, have their human inhabitants perplexed the ethnologist; and here we arrive at the true peculiarity of the andaman islands,--that is to say, the _people_ who inhabit them. with perhaps no exception, these people are the most truly savage of any on the face of the globe; and this has been their character from the earliest times: for they have been known to the ancients as far back as the time of ptolemy. ptolemy mentions them under the title of _anthropophagi_ (man-eaters); and the arabs of the ninth century, who navigated the indian ocean, have given a similar account of them. marco polo adopts this statement, and what is still more surprising, one of the most noted ethnologists of our own time--dr latham--has given way to a like credulity, and puts the poor andamaners down as "pagan cannibals." it is an error: they are not cannibals in any sense of the word; and if they have ever eaten human flesh,--of which there is no proof,--it has been when impelled by famine. under like circumstances, some of every nation on earth have done the same,-englishmen, germans, frenchmen, americans,--of late years frequently,-in the mountains of new mexico and california. the charge of cannibalism against these miserable beings rests on no other foundation than the allegations of chinese sailors, and the vague statements of ptolemy and the arabs above mentioned. the chinese have occasion now and then to visit the andaman islands in their junks, to collect the edible nests of the swallow (_hirundo esculenta_),--which birds have extensive breeding-places on the cliffs that overhang the coast of the great andaman. the "trepang," or sea-slug, is also found in large quantities upon the rocks near the shore; and this is equally an object of commerce, and esteemed an article of the greatest luxury, among the mandarins, and other rich celestials who can afford to indulge in it. now and then, a junk has been wrecked among these rocks; and its miserable crew have fallen a victim to the hostility of the natives: just as they might have done on more civilised coasts, where no cannibalism was ever suspected to exist. crews of junks have been totally destroyed,--murdered, if you please,--but it would not be difficult to show, that this was done more from motives of revenge than from a mere sanguinary instinct or disposition; but there is no proof whatever of, even a single case, of true cannibalism. indeed there are strong reasons for our disbelief in this horrid custom,--so far as regards the poor savages of the andamans. an incident, that seems to give a flat contradiction to it, occurred during the occupancy of the island by the east-india company in the year 1793; and other proofs of non-cannibalism have been obtained at a still more recent period, to which we shall presently allude. the incident of 1793 was as follows: a party of fishers belonging to the settlement enticed an andaman woman to come near, by holding out presents of food. the woman was made captive by these treacherous men; who, instead of relieving her hunger, proceeded to behave to her in the most brutal and unfeeling manner. the cries of the poor creature brought a numerous troop of her people to the spot; who, rushing out of the thickets from every side, collected around the fishermen; and, having attacked them with spears and arrows, succeeded in killing two of their number. the rest with difficulty escaped to the settlement; and, having obtained assistance, a large party set out to search for the bodies of their companions. there was but little expectation that these would be recovered: as all were under the belief that the savages must have carried them away for the purpose of making a cannibal feast upon them. there had been ample time for the removing of them: since the scene of the struggle was at a considerable distance from the fort. the searchers, therefore, were somewhat astonished at finding both bodies on the spot where they had fallen, and the enemy entirely gone from the ground! the bodies were disfigured in the most shocking manner. the flesh was pierced in every part,--by spears, no doubt,--and the bones had been pounded with heavy stones, until they were mashed into fragments; but not a bit of flesh was removed, not even an arm or limb had been severed! the other instance to which we have promised to allude occurred at a much more recent period,--so late, in fact, as the period of the king of delhi's imprisonment. it will be fresh in the memory of my readers, that his hindoo majesty was carried to the island of great andaman, along with a number of "sepoy" rebels, who had been taken prisoners during the late indian revolt. the convict settlement was restored, especially for this purpose; and a detachment of "east-india company's troops" was sent along with the rebel sepoys to guard them. it was supposed that the troops would have great difficulty in the performance of their duty: since the number of their prisoners was larger than could be fairly looked after; and, it was well-known, that, if a prisoner could once get clear of the walls of the fort, it would be altogether idle to pursue him. the chase after a fugitive through the tangled forests of the andamans would be emphatically a "wild-goose" chase; and there would be ten chances to one against his being recaptured. such, in reality, did it appear, for the first week or two, after the settlement was re-established. numerous prisoners escaped into the woods, and as it was deemed idle to follow them, they were given up as "lost birds." in the end, however, it proved that they were not all lost,--though some of them were. after a week or two had expired, they began to straggle back to the fort, and voluntarily deliver themselves up to their old guards,--now one, now another, or two or three at a time,--but all of them in the most forlorn and deplorable condition. they had enjoyed a little, liberty on the andaman isles; but a taste of it had proved sufficient to satisfy them that captivity in a well-rationed guard-house was even preferable to freedom with a hungry stomach, added to the risk which they ran every hour of the day of being impaled upon the spears of the savages. many of them actually met with this fate; and others only escaped half dead from the hostile treatment they had received at the hands of the islanders. there was no account, however, that any of them had been _eaten_,--no evidence that their implacable enemies were cannibals. such are a few arguments that seem to controvert the accusation of ptolemy and the two arab merchants,--in whose travels the statement is found, and afterwards copied by the famous marco polo. probably the arabs obtained their idea from ptolemy, marco polo from the arabs, and dr latham from marco polo. indeed, it is by no means certain that ptolemy meant the andaman islands by his _islae bonae fortunae_, or "good-luck isles,"--certainly a most inappropriate appellation. he may have referred to sumatra and its battas,--who _are_ cannibals beyond a doubt. and, after all, what could ptolemy know about the matter except from vague report, or, more likely still, more vague _speculation_,--a process of reasoning practised in ptolemy's time, just as at the present day. we are too ready to adopt the errors of the ancient writers,--as if men were more infallible then than they are now; and, on the other hand, we are equally prone to incredulity,--often rejecting their testimony when it would conduct to truth. i believe there is no historic testimony--ancient or modern--before us, to prove that the andaman islanders are cannibals; and yet, with all the testimony to the contrary, there is one fact, or rather a hypothesis, which shall be presently adduced, that would point to the _probability_ of their being so. if they are not cannibals, however, they are not the less unmitigated _savages_, of the very lowest grade and degree. they are unacquainted with almost the very humblest arts of social life; and are not even so far advanced in the scale as to have an organisation. in this respect they are upon a par with the bushmen of africa and the diggers of north america: still more do they resemble the wretched starvelings of tierra del fuego. they have no tribal tie; but dwell in scattered groups or gangs,--just as monkeys or other animals of a gregarious nature. in person, the andaman is one of the very "ugliest" of known savages. he is of short stature, attaining to the height of only five feet; and his wife is a head shorter than himself. both are as black as pitch, could their natural colour be discovered; but the skin is usually hidden under a mask of rare material, which we shall presently have occasion to describe. the upper half of the andamaner's body is strongly and compactly built, and his arms are muscular enough. it is below, in the limbs, where he is most lacking in development. his legs are osseous and thin; and, only when he is in fine condition, is there the slightest swell on them that would indicate the presence of a calf. his feet are of monstrous length, and without any symmetry,--the heel projecting far backwards, in the fashion usually styled "lark-heeled." it is just possible that a good deal of practice, by running over mud-banks and quicksands in search of his shell-fish subsistence, may have added to the natural development of his pedal extremities; for there can be no longer any doubt, that like effects have been produced by such causes,--effects that are indeed, after all, more _natural_ than _artificial_. the andamaner exhibits the protuberance of belly noticed among other savages, who lead a starving life; and his countenance is usually marked with an expression that betrays a mixture of ferocity and famine. it is worthy of remark, however, that though these stunted proportions are generally observable among the natives of the andaman islands, they do not appear to be universal. it is chiefly on the island of the great andaman that the most wretched of these savages are found. the little andaman seems to produce a better breed: since parties have been met with on this last-named island, in which many individuals were observed nearly six feet in height, and stout in proportion. one of these parties, and the incident of meeting with it, are thus described by an officer who was present:-"we had not gone far, when, at an angle of the jungle, which covers the island to within a few yards of the water's edge, we came suddenly upon a party of the natives, lying upon their bellies behind the bushes, armed with spears, arrows, and long-bows, which they bent at us in a threatening manner. our lascars, as soon as they saw them, fell back in great consternation, levelling their muskets and running into the sea towards the boats. it was with great difficulty we could prevent our cowardly rascals from firing; the tyndal was the only one who stood by the chief mate and myself. we advanced within a few paces of the natives, and made signs of drinking, to intimate the purpose of our visit. the tyndal salaamed to them, according to the different oriental modes of salutation,--he spoke to them in malay, and other languages; but they returned no answer, and continued in their crouching attitude, pointing their weapons at us whenever we turned. i held out my handkerchief but they would not come from behind the bushes to take it. i placed it upon the ground; and we returned, in order to allow them an opportunity of picking it up: still they would not move. "i counted sixteen strong and able-bodied men opposite to us, many of them very lusty; and further on, six more. they were very different in appearance from what the natives of the great andaman are represented to be,--that is, of a puny race. the whole party was completely naked, with the exception of one,--a stout man nearly six feet in height, who was standing up along with two or three women in the rear. he wore on his head a red cloth with white spots. "they were the most ferocious and wild-looking beings i ever beheld. those parts of their bodies that were not besmeared with mud, were of a sooty black colour. their faces seemed to be painted with a red ochre." notwithstanding the difference in stature and other respects,--the result no doubt of a better condition of existence,--the inhabitants of both islands, great and little andaman, are the same race of people; and in the portrait, the faces of both may be considered as one and the same. this brings us to the strangest fact in the whole history of the andaman islander. instead of a hindoo face, or a chinese mongolian face, or that of a malay,--any of which we might reasonably expect to find in an aboriginal of the bay of bengal,--we trace in the andaman islander the true physiognomy of a negro. not only have we the flat nose and thick lips, but the curly hair, the sooty complexion, and all the other negro characteristics. and the most ill-favoured variety at that; for, in addition to the ungraceful features already mentioned, we find a head large beyond all proportion, and a pair of small, red eyes deeply sunken in their sockets. truly the andaman islander has few pretensions to being a beauty! wretched, however, as the andaman islander may appear, and of little importance as he certainly is in the great social family of the human race, he is, ethnologically speaking, one of its most interesting varieties. from the earliest times he has been a subject of speculation, or rather his presence in that particular part of the world where he is now found: for, since it is the general belief that he is entirely isolated from the two acknowledged negro races, and surrounded by other types of the human family, far different from either, the wonder is how he came to be there. perhaps no other two thousand people on earth--for that is about the number of andaman islanders--have been honoured with a greater amount of speculation in regard to their origin. some ethnologists assign to them an african origin, and account for their presence upon the andaman islands by a singular story: that a portuguese ship laden with african slaves, and proceeding to the indian colonies, was wrecked in the bay of bengal, and, of course, off the coast of the andamans: that the crew were murdered by the slaves; who, set free by this circumstance, became the inhabitants of the island. this story is supported by the argument, that the hostility which the natives now so notoriously exhibit, had its origin in a spirit of revenge: that still remembering the cruel treatment received on the "middle passage" at the hands of their portuguese masters, they have resolved never to be enslaved again; but to retaliate upon the white man, whenever he may fall into their power! certainly the circumstances would seem to give some colour to the tale, if it had any foundation; but it has none. were we to credit it, it would be necessary to throw ptolemy and the arab merchants overboard, and marco polo to boot. all these have recorded the existence of the andaman islanders, long before ever a portuguese keel cleft the waters of the indian ocean,--long even before di gama doubled the cape! but without either the aid of ptolemy or the testimony of the arabian explorers, it can be established that the andaman islands were inhabited before the era of the portuguese in india; and by the same race of savages as now dwell upon them. another theory is that it was an _arabian_ slave-ship that was wrecked, and not a portuguese; and this would place the peopling of the islands at a much earlier period. there is no positive fact, however, to support this theory,--which, like the other, rests only on mere speculation. the error of these hypotheses lies in their mistaken _data_; for, although, we have stated that the andaman islanders are undoubtedly a negro race, they are not that negro race to which the speculation points,--in other words, they are not _african_ negroes. beyond certain marked features, as the flat nose and thick lips, they have nothing in common with these last. their hair is more of the kind called "frizzly," than of the "woolly" texture of that of the ethiopian negro; and in this respect they assimilate closely to the "papuan," or new guinea "negrillo," which every one knows is a very different being from the _african_ negro. their moral characteristics--such as there has been an opportunity of observing among them--are also an additional proof that they are not of african origin; while these point unmistakably to a kinship with the other side of the indian ocean. even some of their fashions, as we shall presently have occasion to notice, have a like tendency to confirm the belief that the andaman is a "negrillo," and not a "negro." the only obstacle to this belief has hitherto been the fact of their isolated situation: since it is alleged--rather hastily as we shall see--that the whole of the opposite continent of the burmese and other empires, is peopled by races entirely distinct: that none of the adjacent islands--the nicobars and sumatra--have any negro or negrillo inhabitants: and that the andamaners are thus cut off, as it were, from any possible line of migration which they could have followed in entering the bay of bengal. ethnologists, however, seem to have overlooked the circumstance that this allegation is not strictly true. the _samangs_--a tribe inhabiting the mountainous parts of the malayan peninsula--are also a negro or negrillo race; a fact which at once establishes a link in the chain of a supposed migration from the great indian archipelago. this lets the andaman islander into the great china sea; or rather, coming from that sea, it forms the stepping-stone to his present residence in the bay of bengal. who can say that he was not at one time the owner of the malayan peninsula? how can we account for the strange fact, that figures of boodh--the guadma of the burmese and siamese--are often seen in india beyond the ganges, delineated with the curly hair and other characteristic features of the negro? the theory that the samang and andaman islander once ruled the malay peninsula; that they themselves came from eastward,--from the great islands of the melanesian group, the centre and source of the negrillo race,--will in some measure account for this singular monumental testimony. the probability, moreover, is always in favour of a migration westward within the tropics. beyond the tropics, the rule is sometimes reversed. a coincidence of personal habit, between the andaman islander and the melanesian, is also observed. the former dyes his head of a brown or reddish colour,--the very fashion of the feegee! suppose, then, that the samang and andaman islander came down the trades, at a period too remote for even tradition to deal with it: suppose they occupied the malay peninsula, no matter how long; and that at a much more recent period, they were pushed out of place,--the one returning to the andaman islands, the other to the mountains of the quedah: suppose also that the party pushing them off were malays,--who had themselves been drifted for hundreds of years down the trades from the far shores of america (for this is _our_ "speculation"): suppose all these circumstances to have taken place, and you will be able to account for two facts that have for a long time puzzled the ethnologist. one is the presence of negroes on the islands of andaman,--and the other of malays in the south-eastern corner of asia. we might bring forward many arguments to uphold the probability of these hypotheses, had we space and time. both, however, compel us to return to the more particular subject of our sketch; and we shall do so after having made a remark, promised above, and which relates to the _probability_ of the andaman islander being a cannibal. this, then, _would lie in the fact of his being a papuan negro_. and yet, again, it is only a seeming; for it might be shown that with the papuan cannibalism is not a natural instinct. it is only where he has reached a high degree of _civilisation_, as in the case of the feegee islander. call the latter a monster if you will; but, as may be learnt from our account of him, he is anything but a _savage_, in the usual acceptation of the term. in fact, language has no epithet sufficiently vile to characterise such an anomalous animal as he. i have endeavoured to clear the andaman islander of the charge of this guilt; and, since appearances are so much against him, he ought to feel grateful. it is doubtful whether he would, should this fall into his hands, and he be able to read it. the portrait of his face without that stain upon it, he might regard as ugly enough; and that of his habits, which now follows, is not much more flattering. his house is little better than the den of a wild beast; and far inferior in ingenuity of construction to those which beavers build. a few poles stuck in the ground are leant towards each other, and tied together at the top. over these a wattle of reeds and rattan-leaves forms the roof; and on the floor a "shake-down" of withered leaves makes his bed, or, perhaps it should rather be called his "lair." this, it will be perceived, is just the house built by diggers, bushmen, and fuegians. there are no culinary utensils,--only a drinking-cup of the _nautilus_ shell; but implements of war and the chase in plenty: for such are found even amongst the lowest of savages. they consist of bows, arrows, and a species of javelin or dart. the bows are very long, and made of the bamboo cane,--as are also the darts. the arrows are usually pointed with the tusks of the small wild hogs which inhabit the islands. these they occasionally capture in the chase, hanging up the skulls in their huts as trophies and ornaments. with strings of the hog's teeth also they sometimes ornament their bodies; but they are not very vain in this respect. sometimes pieces of iron are found among them,--nails flattened to form the blades of knives, or to make an edge for their adzes, the heads of which are of hard wood. these pieces of iron they have no doubt obtained from wrecked vessels, or in the occasional intercourse which they have had with the convict establishment; but there is no regular commerce with them,--in fact, no commerce whatever,--as even the malay traders, that go everywhere, do not visit the andamaners, from dread of their well-known ishmaelitish character. some of the communities, more forward in civilisation, possess articles of more ingenious construction,--such as baskets to hold fruits and shell-fish, well-made bows, and arrows with several heads, for shooting fish. the only other article they possess of their own manufacture, is a rude kind of canoe, hollowed out of the trunk of a tree, by means of fire and their poor adze. a bamboo raft, of still ruder structure, enables them to cross the narrow bays and creeks by which their coast is indented. their habitual dwelling-place is upon the shore. they rarely penetrate the thick forests of the interior, where there is nothing to tempt them: for the wild hog, to which they sometimes give chase, is found only along the coasts where the forest is thinner and more straggling, or among the mangrove-bushes,--on the fruits of which these animals feed. strange to say, the forest, though luxuriant in species, affords but few trees that bear edible fruits. the cocoa-palm--abundant in all other parts of the east-indian territories, and even upon the cocos islands, that lie a little north of the andamans--does not grow upon these mountain islands. since the savages know nothing of cultivation, of course their dependence upon a vegetable diet would be exceedingly precarious. a few fruits and roots are eaten by them. the pandanus, above mentioned, bears a fine cone-shaped fruit, often weighing between thirty and forty pounds; and this, under the name of _mellori_, or "nicobar breadfruit," forms part of their food. but it requires a process of cooking, which, being quite unknown to the andamaners, must make it to them a "bitter fruit" even when roasted in the ashes of their fires, which is their mode of preparing it. they eat also the fruit of the mangrove, and of some other trees--but these are not obtainable at all seasons, or in such quantity as to afford them a subsistence. they depend principally upon fish, which they broil in a primitive manner over a gridiron of bamboos, sometimes not waiting till they are half done. they especially subsist upon shell-fish, several kinds abounding on their coasts, which they obtain among the rocks after the tide has gone out. to gather these is the work of the women, while the men employ themselves in fishing or in the chase of the wild hog. the species of shell-fish most common are the _murex tribulus, trochus telescopium, cypraea caurica_, and mussels. they are dexterous in capturing other fish with their darts, which they strike down upon the finny prey, either from their rafts, or by wading up to their knees in the water. they also take fish by torchlight,--that is, by kindling dry grass, the blaze of which attracts certain species into the shallow water, where the fishers stand in wait for them. when the fishery fails them, and the oysters and muscles become scarce, they are often driven to sad extremities, and will then eat anything that will sustain life,--lizards, insects, worms,--perhaps even _human flesh_. they are not unfrequently in such straits; and instances are recorded, where they have been found lying upon the shore in the last stages of starvation. an instance of this kind is related in connection with the convict settlement of 1793. a coasting-party one day discovered two andamaners lying upon the beach. they were at first believed to be dead, but as it proved, they were only debilitated from hunger: being then in the very last stages of famine. they were an old man and a boy; and having been carried at once to the fort, every means that humanity could suggest was used to recover them. with the boy this result was accomplished; but the old man could not be restored: his strength was too far gone; and he died, shortly after being brought to the settlement. two women or young girls were also found far gone with hunger; so far, that a piece of fish held out was sufficient to allure them into the presence of a boat's crew that had landed on the shore. they were taken on board the ship, and treated with the utmost humanity. in a short time they got rid of all fears of violence being offered them; but seemed, at the same time, to be sensible of modesty to a great degree. they had a small apartment allotted to them; and though they could hardly have had any real cause for apprehension, yet it was remarked that the two never went to sleep at the same time: one always kept watch while the other slept! when time made them more familiar with the good intentions towards them, they became exceedingly cheerful, chattered with freedom, and were amused above all things at the sight of their own persons in a mirror. they allowed clothes to be put on them; but took them off again, whenever they thought they were not watched, and threw them away as a useless encumbrance! they were fond of singing; sometimes in a melancholy recitative, and sometimes in a lively key; and they often gave exhibitions of dancing around the deck, in the fashion peculiar to the andamans. they would not drink either wine or any spirituous liquor; but were immoderately fond of fish and sugar. they also ate rice when it was offered to them. they remained, or rather were retained, several weeks on board the ship; and had become so smooth and plump, under the liberal diet they indulged in, that they were scarce recognisable as the half-starved creatures that had been brought aboard so recently. it was evident, however, that they were not contented. liberty, even with starvation allied to it, appeared sweeter to them than captivity in the midst of luxury and ease. the result proved that this sentiment was no stranger to them: for one night, when all but the watchman were asleep, they stole silently through the captain's cabin, jumped out of the stern windows into the sea, and swam to an island full half a mile distant from the ship! it was thought idle to pursue them; but, indeed, there was no intention of doing so. the object was to retain them by kindness, and try what effect might thus be produced on their wild companions, when they should return to them. strange to say, this mode of dealing with the andaman islanders has been made repeatedly, and always with the same fruitless result. whatever may have been the original cause that interrupted their intercourse with the rest of mankind, they seem determined that this intercourse shall never be renewed. when plenty reigns among them, and there has been a good take of fish, they act like other starved wretches; and yield themselves up to feasting and gorging, till not a morsel remains. at such times they give way to excessive mirth,--dancing for hours together, and chattering all the while like as many apes. they are extremely fond of "tripping it on the light fantastic toe;" and their dance is peculiar. it is carried on by the dancers forming a ring, and leaping about, each at intervals saluting his own posteriors with a slap from his foot,--a feat which both the men and women perform with great dexterity. not unfrequently this mode of salutation is passed from one to the other, around the the whole ring,--causing unbounded merriment among the spectators. their fashion of dress is, perhaps, the most peculiar of all known costumes. as to clothing, they care nothing about it,--the females only wearing a sort of narrow fringe around the waist,--not from motives of modesty, but simply as an ornament; and in this scant garment we have a resemblance to the _liku_ of the feegeeans. it can hardly be said, however, that either men or women go entirely naked; for each morning, after rising from his couch of leaves, the andamaner plasters the whole of his body with a thick coat of mud, which he wears throughout the day. wherever this cracks from getting dry by the sun, the place is patched or mended up with a fresh layer. the black mop upon his head is not permitted to wear its natural hue; but, as already mentioned, is coloured by means of a red ochreous earth, which is found in plenty upon the islands. this reddening of his poll is the only attempt which the andamaner makes at personal adornment; for his livery of mud is assumed for a purpose of utility,--to protect his body from the numerous mosquitoes, and other biting insects, whose myriads infest the lowland coast upon which he dwells. a startling peculiarity of these islanders is the unmitigated hostility which they exhibit, and have always exhibited, towards every people with whom they have, come in contact. it is not the white man alone whom they hate and harass; but they also murder the malay, whose skin is almost as dark as their own. this would seem to contradict the hypothesis of a tradition of hostility preserved amongst them, and directed against white men who enslaved their ancestors; but, indeed, that story has been sufficiently refuted. a far more probable cause of their universal hatred is, that, at some period of their history, they have been grossly abused; so much so as to render suspicion and treachery almost an instinct of their nature. in these very characteristic moral features we find another of those striking analogies that would seem to connect them with the negrillo races of the eastern archipelago; but, whether they are or are not connected with them, their appearance upon the andaman is no greater mystery, than the solitary "fox-wolf" on the falkland islands, or the smallest wingless insect in some lone islet of the ocean? chapter seventeen. the patagonian giants. who has not heard of the _giants_ of patagonia? from the days of magellan, when they were first seen, many a tale has been told, and many a speculation indulged in about these colossal men: some representing them as very titans, of twelve feet in height, and stout in proportion: that, when standing a little astride, an ordinary-sized man could pass between their legs without even stooping his head! so talked the early navigators of the great south sea. since the time when these people were first seen by europeans, up to the present hour,--in all, three hundred and thirty years ago,--it is astonishing how little has been added to our knowledge of them; the more so, that almost every voyager who has since passed through the straits of magellan, has had some intercourse with them;--the more so, that spanish people have had settlements on the confines of their country; and one--an unsuccessful one, however--in the very heart of it! but these spanish settlements have all decayed, or are fast decaying; and when the spanish race disappears from america,--which sooner or later it will most certainly do,--it will leave behind it a greater paucity of monumental record, than perhaps any civilised nation ever before transmitted to posterity. little, however, as we have learnt about the customs of the patagonian people, we have at least obtained a more definite idea of their height. _they have been measured_. the twelve-feet giants can no longer be found; they never existed, except in the fertile imaginations of some of the old _navigators_,--whose embodied testimony, nevertheless, it is difficult to disbelieve. other and more reliable witnesses have done away with the titans; but still we are unable to reduce the stature of the patagonians to that of ordinary men. if not actual _giants_, they are, at all events, very tall men,--many of them standing seven feet in their boots of guanaco-leather, few less than six, and a like few rising nearly to eight! these measurements are definite and certain; and although the whole number of the indians that inhabit the plains of patagonia may not reach the above standard there are tribes of smaller men called by the common name patagonians,--yet many individuals certainly exist who come up to it. if not positive giants, then, it is safe enough to consider the patagonians as among the "tallest" of human beings,--perhaps the very tallest that exist, or ever existed, upon the face of the earth; and for this reason, if for no other, they are entitled to be regarded as an "odd people." but they have other claims to this distinction; for their habits and customs, although in general corresponding to those of other tribes of american indians, present us with many points that are peculiar. it may be remarked that the patagonian women, although not so tall as their men, are in the usual proportion observable between the sexes. many of them are more corpulent than the men; and if the latter be called _giants_, the former have every claim to the appellation of _giantesses_! we have observed, elsewhere, the very remarkable difference between the two territories, lying respectively north and south of the magellan straits,--the patagonian on the north, and the fuegian on the south. no two lands could exhibit a greater contrast than these,--the former with its dry sterile treeless plains,--the latter almost entirely without plains; and, excepting a portion of its eastern end, without one level spot of an acre in breadth; but a grand chaos of humid forest-clad ravines and snow-covered mountains. yet these two dissimilar regions are only separated by a narrow sea-channel,--deep, it is true; but so narrow, that a cannon-shot may be projected from one shore to the other. not less dissimilar are the people who inhabit these opposite shores; and one might fancy a strange picture of contrast presented in the straits of magellan: on some projecting bluff on the northern shore, a stalwart patagonian, eight feet in height, with his ample guanaco skin floating from his shoulders, and his long spear towering ten feet above his head;--on the southern promontory, the dwarfed and shrivelled figure of a fuegian,--scarce five feet tall,--with tiny bow and arrows in hand, and shivering under his patch of greasy sealskin!--and yet so near each other, that the stentorian voice of the giant may thunder in the ears of the dwarf; while the henlike cackle of the latter may even reach those of his colossal _vis-a-vis_! notwithstanding this proximity, there is no converse between them; for, unlike as are their persons, they are not more dissimilar than their thoughts, habits, and actions. the one is an aquatic animal, the other essentially terrestrial; and, strange to say, in this peculiarity the weaker creature has the advantage: since the fuegian can cross in his bark canoe to the territory of his gigantic neighbour, while the latter has no canoe nor water-craft of any kind, and therefore never thinks of extending his excursions to the "land of fire," excepting at one very narrow place where he has effected a crossing. in many other respects, more particularly detailed elsewhere,--in their natural dispositions and modes of life, these two peoples are equally dissimilar; and although learned craniologists may prove from their skulls, that both belong to one division of the human family, this fact proves also that craniology, like anatomy, is but a blind guide in the illustration of scientific truth,--whether the subject be the skull of a man or an animal. despite all the revelations of craniologic skill, an indian of patagonia bears about the same resemblance to an indian of tierra del fuego, as may be found between a bull and a bluebottle! before proceeding to describe the modes of life practised by the patagonian giants, a word or two about the country they inhabit. it may be generally described as occupying the whole southern part of south america,--from the frontier of the spanish settlements to the straits of magellan,--and bounded east and west by the two great oceans. now, the most southern spanish (buenos-ayrean) settlement is at the mouth of rio negro; therefore, the rio negro--which is the largest river south of the la plata--may be taken as the northern boundary of patagonia. not that the weak, vitiated spanish-american extends his sway from the atlantic to the andes: on the contrary, the indian aborigines, under one name or another, are masters of the whole interior,--not only to the north of the rio negro, but to the very shores of the caribbean sea! yes, the broad inland of south america, from cape horn to the sea of the antilles, is now, as it always has been, the domain of the red indian; who, so far from having ever been reduced by conquest, has not only resisted the power of the spanish sword, and the blandishments of the spanish cross; but at this hour is encroaching, with constant and rapid strides, upon the blood-stained territory wrested from him by that _christian conquest_! and this is the man who is so rapidly to disappear from the face of the earth! if so, it is not the puny spaniard who is destined to push him off. if he is to disappear, it will be at such a time, that no spaniard will be living to witness his extermination. let us take patagonia proper, then, as bordered upon the north by the rio negro, and extending from the atlantic to the pacific. in that case it is a country of eight hundred miles in length, with a breadth of at least two hundred,--a country larger than either france or spain. patagonia is usually described as a continuation of the great plains, known as the "pampas," which extend from the la plata river to the eastern slope of the andes. this idea is altogether erroneous. it is true that patagonia is a country of plains,--excepting that portion of it occupied by the andes, which is, of course, a mountain tract, much of it resembling tierra del fuego in character more than patagonia. indeed, patagonia proper can hardly be regarded as including this mountain strip: since the patagonian indians only inhabit the plains properly so called. these plains differ essentially from those of the pampas. the latter are based upon a calcareous formation: and produce a rank, rich herbage,--here of gigantic thistles and wild artichokes,-there of tall grasses; and, still nearer the mountains, they are thinly covered with copses of low trees. the plains of patagonia on the other hand, are of tertiary formation, covered all over with a shingly pebble of porphyry and basalt, and almost destitute of vegetation. here and there are some tufts of scanty grass with a few stunted bushes in the valleys of the streams, but nothing that can be called a tree. a surface drear and arid, in places mottled with "salinas" or salt lakes; with fresh water only found at long intervals, and, when found, of scanty supply. there are many hilly tracts, but nothing that can be called mountains,--excepting the snow-covered cordilleras in the west. the patagonian plain is not everywhere of equal elevation: it rises by steps, as you follow it westward, beginning from the sea-level of the atlantic shore; until, having reached the _piedmont_ of the andes, you still find yourself on a plain, but one which is elevated three thousand feet above the point from which you started. at all elevations, however, it presents the same sterile aspect; and you perceive that patagonia is a true desert,--as much so as atacama, in peru, the desert of the colorado in the north, the "barren grounds" of hudson's bay, the sahara and kalahari, gobi, or the steppe of kaurezm. to the south-african deserts it bears a more striking resemblance than to any of the others,--a resemblance heightened by the presence of that most remarkable of birds,--the ostrich. two species stalk over the plains of patagonia,--the _struthio rhea_ and _struthio darwinii_. the former extends northward over the pampas, but not southward to the straits of magellan; the latter reaches the straits, but is never seen upon the pampas. the ranges of both meet and overlap near the middle of the patagonian plain. in addition to the ostrich, there are other large birds that frequent the steppes of patagonia. the great condor here crosses the continent, and appears upon the atlantic shores. he perches upon the cliffs of the sea,--as well as those that overhang the inland streams,--and builds his nest upon the bare rock. two species of _polyborus_, or vulture-eagles,--the "carrancha" and "chiniango,"--fly side by side with the condor; and the black turkey-vultures are also denizens of this desert land. the red puma, too, has his home here; the fox of azara; and several species of hawks and eagles. with the exception of the first-mentioned--the ostrich--all these beasts and birds are predatory creatures; and require flesh for their subsistence. where do they get it? upon what do they all prey? surely not upon the ostrich: since this bird is bigger than any of the birds of prey, and able to defend itself even against the great condor. there are only one or two other species of birds upon which the eagles might subsist,--a partridge and two kinds of plover; but the vultures could not get a living out of partridges and plovers. small quadrupeds are alike scarce. there are only two or three species; and very small creatures they are,--one a sort of mole, "terutero," and several kinds of mice. the latter are, indeed, numerous enough in some places,-swarming over the ground in tracts so sterile, that it is difficult to understand upon what they subsist. but vultures do not relish food, which they require to kill for themselves. they are too indolent for that; and wherever they are found, there must be some source of supply,--some large quadrupeds to provide them with their favourite food,--carrion. otherwise, in this desert land, how should the ravenous puma maintain himself?--how the vultures and vulture-eagles? and, above all, upon what does the patagonian himself subsist,--a man of such great bulk, as naturally to require more than the ordinary amount of food? the answer to all these questions, then, is, that a quadruped _does_ exist in the deserts of patagonia; which, if it furnish not all these creatures with their full diet supplies, does a large proportion of it. this quadruped is the _guanaco_. before proceeding to give an account of the guanaco, let us paint the portrait of the patagonian himself. as already observed, he is nearly seven feet in height, without any exaggeration in the way of a hat. he wears none, but suffers his long black hair to hang loosely over his shoulders, or, more frequently, gathers it into a knot or club upon the crown of his head. to keep it from straggling into his eyes, he usually wears a narrow strap of guanaco skin around his forehead, or a plaited band of the hair of the same animal; but, although possessing ostrich-feathers at discretion, he rarely indulges in the fashion of wearing a plume,--he knows he is tall enough without one. over his shoulders, and hanging nearly to his heels, he wears a loose mantle of guanaco skins; which is of sufficient width to wrap round his body, and meet over his breast,--should he feel cold enough to require it. but he is not of a chilly nature; and he often throws this mantle entirely aside to give him the freedom of his arms; or more generally ties a girdle round it, and leaves the upper part to fall back from his shoulders, and hang down over the girdle. this mantle--with the exception of a small pouch-like apron in front--is the only "garment," the patagonian wears upon his body; but his lower limbs have a covering of their own. these are encased in a sort of boots or mocassins,--but differing from all other boots and mocassins, in the fact of their being without _soles_! they are made of the same material as the mantle,--that is, of the skin of the _guanaco_,--but sometimes also of the skin of a horse's shank,--for the patagonian, like the pampas indian, is in possession of this valuable animal. this soleless boot covers the leg all round from below the knee, passing over the top of the foot like a gaiter; it extends also around the heel, and a little under it, but not so far as the instep, thus leaving the greater part of the sole bare, and the toes peeping out in front! they are, in reality, nothing more or less than gaiters, but gaiters of _guanaco skin_, with the hair turned outward, and worn, not over a pair of boots or shoes, as gaiters usually are, but upon the naked shanks. i have been thus particular in my description of the patagonian _chaussure_; but you will understand my reasons, when i tell you that, from this trifling circumstance, not only has a vast territory of country, but the people who inhabit it, obtained the appellation by which both have long been known to the civilised world, that is, _patagonian_. when the sailors who accompanied magellan first saw these colossal men, they noticed a peculiar circumstance in relation to their feet. the flaps, or "uppers," of the gaiters, extending loosely across the tops of their feet, and exaggerated in breadth by the long hair that fringed out from their edges, gave to these indians the appearance of having paws or "patas;" and the name _patagones_, or "duck-feet," was given them by the sailors,--ever prone to the bestowal of a ludicrous epithet. this name, in a slightly altered form, they have borne ever since,--so that patagonia means the country of the _duck-footed_ men. the gaiters of the patagonians have their peculiar purpose. they are not worn merely for the sake of keeping the legs warm, but also as a protection against the thorny shrubs which in patagonia, as in all desert lands, are exceedingly abundant. the mantle and mocassins, then, constitute the patagonian's costume; and it does not differ so widely from that of his neighbour the fuegian,-the chief points of difference being in the size and material. of course the guanaco skin is much larger than that of the common seal; and a good patagonian cloak would furnish "doublets" for a whole tribe of the diminutive fuegians. perhaps his ample garment has something to do in producing the exaggerated accounts that have been given of the stature of the patagonians. certain it is, that a man thus apparelled, looks larger than he otherwise would do; and presents altogether a _more_ imposing appearance. the caffre, in his civet-cat "kaross," and the pawnee indian, in his robe of shaggy buffalo-hide, loom very large upon karroo and prairie,--much larger in appearance than they really are. it is but natural, therefore, to suppose that the patagonian, attired in his guanaco mantle, and seen against the sky, standing upon the summit of a conspicuous cliff, would present a truly gigantic appearance. when first seen in this position he was on foot. it was in the year 1520,--before the spaniards had set foot upon south-american soil,--and of course before the horse became naturalised to that continent. in less than thirty years afterward, he appeared upon these same cliffs bestriding a steed: for this noble animal had extended his range over the plains of america,--even at an earlier period than his european owner. when the spaniards, in their after-attempts at conquering the indians of the pampas and those of the northern prairies, entered upon these great plains, they encountered, to their great astonishment, their red enemies upon horseback, brandishing long lances, and managing fiery chargers with a skill equal to their own! among the earliest tribes that obtained possession of the horse, were those of the pampas: since the first of these animals that ran wild on the plains of america were those landed in the la plata expedition of mendoza,--whence they became scattered over the adjacent pampas of buenos ayres. from the banks of the la plata, the horse passed rapidly southward to the straits of magellan; and from that hour the patagonian walked no more. with the exception of a spur,--usually a sharp stick of wood, upon his heel,--the only additional article of his "wear," the horse has made no change in his costume, nor in the fashion of his toilet. he still paints his face, as magellan first saw it,--with a white ring encircling one eye, and a black or red one around the other; with one half of his body coloured black, and a white sun delineated upon it, while the other half is white, forming the "ground" for a black moon! scarce two individuals, however, wear the same escutcheon; for the fashion of having eyes, arms, and legs of two different colours--just as our ancestors used to wear their doublets and hose--is that followed by the patagonians. notwithstanding this queer custom,--usually regarded as savage,--it would be unjust to call the patagonian a _savage_. if we overlook the circumstance of his painting himself,--which, after all, is scarce more absurd than numberless practices of civilised life,--if we excuse him for too scantily covering the nakedness of his person, and relishing his food a little "underdone," we find little else, either in his habits or his moral nature that would entitle him to be termed a savage. on the contrary, from all the testimony that can be obtained,--in all the intercourse which white men have had with him,--there is scarce an act recorded, that would hinder his claim to being considered as civilised as they. honourable and amiable, brave and generous, he has ever proved himself; and never has he exhibited those traits of vindictive ferocity supposed to be characteristic of the untutored man. he has not even harboured malice for the wrongs done him by the unprincipled adventurer magellan: who, in his treatment of these people, proved himself more of a savage than they. but the patagonian restrained his vengeance; and apparently burying the outrage in oblivion, has ever since that time treated the white man with a generous and dignified friendship. those who have been shipwrecked upon his solitary shores, have had no reason to complain of the treatment they have received at his hands. he is neither cannibal, nor yet barbarian,--but in truth a gentleman,--or, if you prefer it, a _gentleman savage_. but how does this gentleman maintain himself? we have already seen that he is not a fisherman,--for he owns no species of boat; and without that his chances of capturing fish would be slight and uncertain. we have stated, moreover, that his country is a sterile desert; and so it is,-producing only the scantiest of herbage; neither plant, nor tree, that would furnish food; and incapable of being cultivated with any success. but he does not attempt cultivation,--he has no knowledge of it; nor is it likely he would feel the inclination, even if tempted by the most fertile soil. neither is he pastoral in his habits: he has no flocks nor herds. the horse and dog are his only domestic animals; and these he requires for other purposes than food. the former enables him to pass easily over the wide tracts of his sterile land, and both assist him in the chase,--which is his true and only calling. one of the chief objects of his pursuit is the ostrich; and he eats the flesh of this fine desert bird. he eats it, whenever he can procure it; but he could not live solely upon such food: since he could not obtain it in sufficient quantity; and were this bird the only means he had for supplying his larder, he would soon be in danger of starvation. true, the ostrich lays a great many eggs, and brings forth a large brood of young; but there are a great many hungry mouths, and a great many large stomachs among the patagonian people. the ostrich could never supply them all; and were it their only resource, the bird would soon disappear from the plains of patagonia, and, perhaps, the race of patagonian giants along with it. fortunately for the patagonian, his country furnishes him with another kind of game, from which he obtains a more sufficient supply; and that is the guanaco. behold yonder herd of stately creatures! there are several hundreds of them in all. their bodies are covered with long, woolly hair of a reddish-brown colour. if they had antlers upon their heads, you might mistake them for stags,--for they are just about the size of the male of the red deer. but they have no horns; and otherwise they are unlike these animals,--in their long slender necks, and coat of woolly hair. they are not deer of any kind,--they are _guanacos_. these, then, are the herds of the patagonian indian; they are the game he chiefly pursues; and their flesh the food, upon which he is mainly subsisted. i need not here give the natural history of the guanaco. suffice it to say that it is one of the four (perhaps five) species of _llamas_ or "camel-sheep" peculiar to the continent of south america,--the other three of which are the _vicuna_, the true _llama_, and the _paco_, or _alpaca_. the llama and alpaca are domesticated; but the vicuna, the most graceful of all, exists only in a wild state, like the guanaco. the four kinds inhabit the tablelands of the andes, from colombia to chili; but the guanaco has extended its range across to the atlantic side of the continent: this only in the territory south of the la plata river. on the plains of patagonia it is the characteristic quadruped: rarely out of sight, and usually seen in herds of twenty or thirty individuals; but sometimes in large droves, numbering as many as five hundred. there the puma--after the indian of course--is its greatest enemy,--and the _debris_ of _his_ feast constitutes the food of the vultures and vulture-eagles,--thus accounting for the presence of these great birds in such a desert land. the guanaco is among the shyest of quadrupeds; and its capture would be difficult to any one unacquainted with its habits. but these betray them to the skilled patagonian hunter,--who is well acquainted with every fact in the natural history of the animal. the patagonian mode of capturing these creatures is not without many peculiarities in hunting practice. his first care is to find out their whereabouts: for the haunts which the guanacos most affect are not the level plains, where they might be seen from afar, but rather those places where the ground is hilly or rolling. there they are to be met with, ranged in extended lines along the sides of the hills, with an old male keeping watch upon the summit of some eminence that overlooks the flock. should the sentinel espy any danger, or even suspect it, he gives the alarm by uttering a shrill, whistling cry, somewhat resembling a neigh. on hearing this well-known signal, the others at once take to flight, and gallop straight for the side of some other hill,--where they all halt in line, and stand waiting to see if they are followed. very often the first intimation which the hunter has of their presence, is by hearing their strange signal of flight,--which may be described as a sort of triangular cross between squealing, neighing, and whistling. shy as they are, and difficult to be approached, they have the strange peculiarity of losing all their senses when put into confusion. on these occasions they behave exactly like a flock of sheep: not knowing which way to ran; now dashing to one side, then to the other, and often rushing into the very teeth of that danger from which they are trying to escape! knowing their stupidity in this respect, the patagonian hunter acts accordingly. he does not go out to hunt the guanacos alone, but in company with others of his tribe, the hunting-party often comprising the whole tribe. armed with their "chuzos,"--light cane spears of eighteen feet in length,--and mounted on their well-trained steeds, they sally forth from their encampment, and proceed to the favourite pasturing-ground of the guanacos. their purpose is, if possible, to effect the "surround" of a whole herd; and to accomplish this, it is necessary to proceed with great skill and caution. the animals are found at length; and, by means of a deployment of dogs and horsemen, are driven towards some hill which may be convenient to the pasture. the instinct of the animal guiding it thither, renders this part of the performance easy enough. on reaching the hill, the guanacos dash onward, up to its summit; and there, halting in a compact crowd, make front towards their pursuers. these meanwhile have galloped into a circle,--surrounding the eminence on all sides; and, advancing upwards amidst loud yells and the yelping of their dogs, close finally around the herd, and rush forward to the attack. the long chuzos do their work with rapidity; and, in a few minutes, numbers of the guanacos lie lifeless among the rocks. the dogs, with some men, form an outer circle of assailants; and should any guanacos escape through the line of horsemen, they are seized upon by the dogs, and pinned to the spot,--for it is another sheep-like trait in the character of this animal, that the moment a dog--even though he be the merest cur--seizes hold of it, it neither attempts further flight nor resistance, but remains "pinned" to the spot as if under a paralysis of terror. they sometimes give battle, however, though never to a dog; and their mode of assault is by kicking behind them,--not with their hoofs as horses do, but with the knee-joints, the hind legs being both raised at once. among themselves the males fight terrible battles: biting each other with their teeth, and often inflicting cruel lacerations. strange to say, when the guanacos are found solitary, or only two or three together, they are far less shy than when assembled in large herds. at such times, the feeling of curiosity seems stronger than that of fear within them; and the hunter can easily approach within a dozen paces of one, by simply cutting a few capers, or holding up something that may be new to it,--such as a strip of coloured rag, or some showy article of any kind. it was by such devices that the patagonian captured these creatures, before possession of the horse enabled him to effect their destruction in the more wholesale fashion of the "surround." by tumbling about over the ground, he was enabled to bring the game within reach,--not of his bow and arrows; nor yet of his long spear,-for he did not use it for such a purpose,--and, of course, not of a gun, for he never had heard of such a weapon. within reach of what then? of a weapon peculiarly his own,--a weapon of singular construction and deadly effect; which he knew how to employ before ever the white man came upon his shores, and which the spaniards who dwell in the pampas country have found both pride and profit in adopting. this weapon is the "bolas." it is simple and easily described. two round stones,--the women make them round by grinding the one against the other,--two round stones are covered with a piece of guanaco raw hide, presenting very much the appearance of cricket-balls, though of unequal size,--one being considerably smaller than the other. two thongs are cut; and one end of each is firmly attached to one of the balls. the other ends of the thongs are knotted to each other; and when the strings are at full stretch, the balls will then be about eight feet apart,--in other words, each thong should be four feet in length. the bolas are now made, and ready for use. the chief difficulty in their manufacture lies in the rounding of the stones; which, as above observed, is the work of the women; and at least two days are required to grind a pair of bola-stones to the proper spherical shape. to handle them requires long practice; and this the patagonian has had: for, ever since the young giant was able to stand upon his feet, he has been in the habit of playing with the bolas. they have been the toy of his childhood; and to display skill in their management has been the pride of his boyish days; therefore, on arriving at full maturity, no wonder he exhibits great dexterity in their use. he can then project them to a distance of fifty yards,--with such precision as to strike the legs of either man or quadruped, and with such force, that the thong not only whips itself around the object struck, but often leaves a deep weal in the skin and flesh. the mode of throwing them is well-known. the right hand only is used; and this grasps the thongs at their point of union, about halfway between the ends. the balls are then whirled in a circular motion around the head; and, when sufficient centrifugal power has been obtained, the weapon is launched at the object to be captured. the aim is a matter of nice calculation,--in which arm, eye, and mind, all bear a part,--and so true is this aim, in patagonian practice, that the hunter seldom fails to bring down or otherwise cripple his game,--be it ostrich, cavy, or guanaco. by these bolas, then, did the patagonian hunter capture the guanaco and ostrich in times past; and by the same weapon does he still capture them: for he can use it even better on horseback than on foot. either the bird or the quadruped, within fifty yards, has no chance of escape from his unerring aim. the bolas, in some districts, have been improved upon by the introduction of a third ball; but this the patagonian does not consider an _improvement_. wooden balls are sometimes employed; and iron ones, where they can be had,--the last sort can be projected to the greatest distance. the patagonian takes the young guanacos alive; and brings them up in a state of domestication. the little creatures may often be observed, standing outside the tents of a patagonian encampment,--either tied by a string, or held in hand by some "infant giant" of the tribe. it is not solely for the pleasure of making pets of them, that the young guanacos are thus cherished; nor yet to raise them for food. the object aimed at has a very different signification. these young guanacos are intended to be used as _decoys_: for the purpose of attracting their own relatives,--fathers, mothers, sisters, brothers, uncles, and aunts, even to the most distant thirty-second cousinship,--within reach of the terrible bolas! this is effected by tying the innocent little creature to some bush,-behind which the hunter conceals himself,--and then imitating the mother's call; which the indian hunter can do with all the skill of a ventriloquist. the young captive responds with the plaintive cry of captivity,--the parents are soon attracted to the spot, and fall victims to their instinct of natural affection. were it not for this, and similar stratagems adopted by the patagonian hunter, he would pursue the guanaco in vain. even with the help of his pack of dogs, and mounted upon the fleet spanish horse, the guanaco cannot be hunted with success. nature, in denying to these animals almost every means of defence, has also bestowed upon them a gift which enables them to escape from many kinds of danger. of mild and inoffensive habits,--defenceless as the hare,--they are also possessed of a like swiftness. indeed, there is perhaps no quadruped--not even the antelope--that can get over the ground as speedily as the guanaco or its kindred species the vicuna. both are swift as the wind; and the eye, following either in its retreat over the level plain, or up the declivity of a hill, is deluded into the fancy that it is watching some great bird upon the wing. there are certain seasons during which the guanaco is much more difficult to approach than at other times; but this is true of almost every species of animal,--whether bird or quadruped. of course, the tame season is that of sexual intercourse, when even the wild beasts become reckless under the influence of passion. at other times the guanacos are generally very shy; and sometimes extremely so. it is not uncommon for a herd of them to take the alarm, and scamper off from the hunter, even before the latter has approached near enough to be himself within sight of them! they possess great keenness of scent, but it is the eye which usually proves their friend, warning them of the approach of an enemy--especially if that enemy be a man upon horseback--before the latter is aware of their proximity. often a cloud of dust, rising afar off over the plain, is the only proof the hunter can obtain, that there was game within the range of his vision. it is a curious circumstance connected with hunting on these great plains,--both on the pampas and in patagonia,--that a man on foot can approach much nearer to any game than if he were mounted upon a horse. this is true not only in relation to the guanaco and ostrich, but also of the large pampas deer (_cervus campestris_); and indeed of almost every animal that inhabits these regions. the reason is simple enough. all these creatures are accustomed to seeing their human enemy only on horseback: for "still hunting," or hunting afoot, is rarely or never practised upon the plains. not only that, but a man on foot, would be a rare sight either to an ostrich or guanaco; and they would scarce recognise him as an enemy! curiosity would be their leading sentiment; and, being influenced by this, the hunter _on foot_ can often approach them without difficulty. the patagonian, knowing this peculiarity, not unfrequently takes advantage of it, to kill or capture both the bird and the quadruped. this sentiment of the brute creation, on the plains of patagonia, is directly the reverse of what may be observed in our own fields. the sly crow shows but little of this shyness, so long as you approach it on a horse's back; but only attempt to steal up to it on foot,--even with a thick hawthorn hedge to screen you,--and every fowler knows how wary the bird can prove itself. some people pronounce this _instinct_. if so, instinct and reason must be one and the same thing. besides hunting the guanaco, much of the patagonian's time is spent in the chase of the ostrich; and, to circumvent this shy creature, he adopts various _ruses_. the american ostrich, or more properly _rhea_, has many habits in common with its african congener. one of these is, when pursued it runs in a straight track, and, if possible, _against_ the wind. aware of this habit, the patagonians pursue it on horseback,--taking the precaution to place some of their party in ambush in the direction which the bird is most likely to run. they then gallop hastily up to the line of flight, and either intercept the rhea altogether, or succeed in "hoppling" it with the bolas. the moment these touch its long legs, both are drawn suddenly together; and the bird goes down as if shot! drake and other voyagers have recorded the statement that the patagonians attract the rhea within reach, by disguising themselves in a skin of this bird. this is evidently an untruth; and the error, whether wilful or otherwise, derives its origin from the fact, that a stratagem of the kind is adopted by the bushmen of africa to deceive the ostrich. but what is practicable and possible between a pigmy bushman and a gigantic african ostrich, becomes altogether impracticable and improbable, when the _dramatis persona_ are a gigantic patagonian and an american _rhea_. moreover, it is also worthy of remark, that the _rhea_ of the patagonian plains is not the larger of the two species of american ostrich, but the smaller one (_rhea darwinii_), which has been lately specifically named after the celebrated naturalist. and justly does mr darwin merit the honour: since he was the first to give a scientific description of the bird. he was not the first, however,--as he appears himself to believe,--to discover its existence, or to give a record of it in writing. the old styrian monk, dobrizhoffer, two centuries before mr darwin was born, in his "history of the abipones" clearly points to the fact that there were two distinct species of the "avestruz," or south-american ostrich. mr darwin, however, has confirmed dobrizhoffer's account; and brought both birds home with him; and he, who chooses to reflect upon the subject, will easily perceive how impossible it would be for a patagonian to conceal his bulky _corpus_ under the skin of a _rhea darwinii, or even_ that of its larger congener, the _rhea americana_. the skin of either would be little more than large enough to form a cap for the _colossus_ of the patagonian plains. in the more fertile parts of patagonia, the large deer (_cervus campestris_) is found. these are also hunted by the patagonian, and their flesh is esteemed excellent food; not, however, until it has lain several days buried underground,--for it requires this funereal process, to rid it of the rank, goat-like smell, so peculiar to the species. the mode of hunting this deer--at least that most likely to insure success-is by stealing forward to it on foot. sometimes a man may approach it, within the distance of a few yards,-even when there is no cover to shelter him,--by walking gently up to it. of all the other quadrupeds of the pampas,--and these plains are its favourite _habitat_,--the _cervus campestris_ most dreads the horseman:--since its enemy always appears in that guise; and it has learnt the destructive power of both lazo and bolas, by having witnessed their effects upon its comrades. the hunter dismounted has no terrors for it; and if he will only keep lazo and bolas out of sight,--for these it can distinguish, as our crow does the gun,--he may get near enough to fling either one or the other with a fatal precision. the "agouti" (_cavia patagonica_) frequently furnishes the patagonian with a meal. this species is a true denizen of the desert plains of patagonia; and forms one of the characteristic features of their landscape. i need not describe its generic characters; and specifically it has been long known as the "patagonian cavy." its habits differ very little from the other south-american animals of this rodent genus,-except that, unlike the great capivara, it does not affect to dwell near the water. it is altogether a denizen of dry plains, in which it burrows, and upon which it may be seen browsing, or hopping at intervals from one point to another, like a gigantic rabbit or hare. in fact, the cavies appear to be the south-american representatives of the hare family,--taking their place upon all occasions; and, though of many different species,--according to climate, soil, and other circumstances,--yet agreeing with the hares in most of their characteristic habits. so much do some of the species assimilate to these last, that colonial sportsmen are accustomed to give them the old-world appellation of the celebrated swift-footed rodent. the patagonian cavies are much larger than english hares,--one of them will weigh twenty-five pounds,--but, in other respects, there is a great deal of resemblance. on a fine evening, three or four cavies may be seen squatted near each other, or hopping about over the plains, one following the other in a direct line, as if they were all proceeding on the same errand! just such a habit is frequently observed among hares and rabbits in a field of young corn or fallow. the patagonian boys and women often employ themselves in seeking out the ostriches' nests, and robbing them of their eggs,--which last they find good eating. in the nests of the smaller species which we have already stated to be the most common in the patagonian country,--they are not rewarded so liberally for their trouble. only from sixteen to twenty eggs are hatched by the _rhea darwinii_ and about twenty-five to thirty by the _rhea americana_. it will be seen, that this is far below the number obtained from the nest of the african ostrich (_struthio camelus_),--in which as many as sixty or seventy eggs are frequently found. it would appear, therefore, that the greater the size of the bird, belonging to this genus the greater the number of its brood. both the american rheas follow the peculiar habit of the true ostrich: that is, several hens deposit their eggs in the same nest; and the male bird assists in the process of incubation. indeed, in almost every respect-except size and general colour of plumage--the american and african ostriches resemble each other very closely; and there is no reason in the world why a pedantic compiler should have bestowed upon them distinct generic names. both are true _camel birds_: both alike the offspring, as they are the ornament, of the desert land. another occupation in which the patagonian engages--and which sometimes rewards him with a meal--is the snaring of the pampas partridge (_nothuria major_). this is usually the employment of the more youthful giants; and is performed both on foot and on horseback. a small species of partridge is taken on foot; but the larger kind can be snared best from the back of a horse. the mode is not altogether peculiar to patagonia: since it is also practised in other parts of america,--both north and south,--and the bustard is similarly captured upon the _karoos_ of africa. during the noon hours of the day, the performance takes place: that is, when the sun no longer casts a shadow. the locality of the bird being first ascertained, the fowler approaches it, as near as it will allow. he then commences riding round, and round, and round,--being all the while watched by the _foolish_ bird, that, in constantly turning its head, appears to grow giddy, and loses all dread of danger. the indian each moment keeps lessening his circle; or, in other words, approaches by a spiral line, continually closing upon its centre. his only weapon is a long light reed,--something like the common kind of cane fishing-rod, seen in the hands of rustic youth in our own country. on the end of this reed he has adjusted a stiff snare; the noose of which is made from the epidermis of an ostrich plume, or a piece of the split quill; and which, being both stiff and elastic, serves admirably for the purpose for which it is designed. having at length arrived within a proper distance to reach the beguiled bird, the boy softly stops his horse, bends gently sidewards, and, adroitly passing his noose over the neck of the partridge, jerks the silly creature into the air. in this way an indian boy will capture a dozen of these birds in a few hours; and might obtain far more, if the sun would only stay all day in the zenith. but as the bright orb sinks westward, the elongated shadow of the horseman passes over the partridge before the latter is within reach of the snare; and this alarming the creature, causes it to take flight. the patagonian builds no house; nor does he remain long in one place at a time. the sterile soil upon which he dwells requires him to lead a nomade life; passing from place to place in search of game. a tent is therefore his home; and this is of the simplest kind: the tent-cloth consisting of a number of guanaco skins stitched together, and the poles being such as he can obtain from the nearest tract of thicket or _chapparal_. the poles are set bow-fashion in the ground, and over these the skin covering is spread,--one of the bent poles being left uncovered, to serve as a doorway. most of the patagonian's time is occupied in procuring game: which, as we have seen, is his sole sustenance; and when he has any leisure moments, they are given to the care of his horse, or to the making or repairing his weapons for the chase. above all, the bolas are his especial pride, and ever present with him. when not in actual use, they are suspended from his girdle, or tied sash-like around his waist,--the balls dangling down like a pair of tassels. only during his hours of sleep, is this national weapon ever out of the hands of the patagonian giant. had the wonderful giant of our nurseries been provided with such a sling, it is probable that little jack would have found in him an adversary more difficult to subdue! chapter eighteen. the fuegian dwarfs. the great continent of south america, tapering like a tongue to the southward, ends abruptly on the straits of magellan. these straits may be regarded as a sort of natural canal, connecting the atlantic with the pacific ocean, winding between high rocky shores, and indented with numerous bays and inlets. though the water is of great depth, the straits themselves are so narrow that a ship passing through need never lose sight of land on either side; and in many places a shell, projected from an ordinary howitzer, would pitch clear across them from shore to shore! the country extending northward from these straits is, as already seen, called _patagonia_; that which lies on their southern side is the famed "land of fire," _tierra del fuego_. the canal, or channel, of the straits of magellan does not run in a direct line from the atlantic to the pacific. on the contrary, a ship entering from the former, instead of passing due west, must first run in a south-west direction,--rather more south than west. this course will continue, until the ship is about halfway between the two oceans. she will then head almost at a right angle to her former course; and keep this direction--which is nearly due north-west--until she emerges into the pacific. it will thus be seen, that the straits form an angle near their middle; and the point of land which projects into the vertex of this angle, and known to navigators as cape forward, is the most southern land of the american _continent_. of course this is not meant to apply to the most southern point of american land,--since tierra del fuego must be considered as part of south america. the far-famed "cape horn" is the part of america nearest to the south pole; and this is a promontory on one of the small elevated islands lying off the southern coast of tierra del fuego itself. tierra del fuego was for a long time regarded as a single island; though, even in the voyage of magellan, several large inlets, that resembled channels, were observed running into the land; and it was suspected by that navigator, that these inlets might be passages leading through to the ocean. later surveys have proved that the conjectures of the spano-portuguese voyager were well founded; and it is now known that instead of a single island, the country called tierra del fuego is a congeries of many islands, of different shapes and sizes,--separated from one another by deep and narrow channels, or arms of the sea, with an endless ramification of sounds and inlets. in the western part--and occupying more than three fourths of their whole territory--these close-lying islands are nothing else than mountains,-several of them rising five thousand feet above the level of the water; and stepping directly down to it, without any foothills intervening! some of them have their lower declivities covered with sombre forests; while, farther up, nothing appears but the bare brown rocks, varied with blue glaciers, or mottled with masses of snow. the more elevated peaks are covered with snow that never melts; since their summits rise considerably above the snow-line of this cold region. these mountain islands of tierra del fuego continue on to cape horn, and eastward to the straits of le maire, and the bleak islet of staaten land. they may, in fact, be considered as the continuation of the great chain of the andes, if we regard the intersecting channels--including that of magellan itself--as mere clefts or ravines, the bottoms of which, lying below the level of the sea, have been filled with sea-water. indeed, we may rationally take this view of the case: since these channels bear a very great resemblance to the stupendous ravines termed "barrancas" and "quebradas," which intersect the cordilleras of the andes in other parts of south america,--as also in the northern division of the american continent. regarding the straits of magellan, then, and the other channels of tierra del fuego, as great _water-barrancas_, we may consider the andes as terminating at cape horn itself, or rather at staaten land: since that island is a still more distant extension of this, the longest chain of mountains on the globe. another point may be here adduced, in proof of the rationality of this theory. the western, or mountainous part of tierra del fuego bears a strong resemblance to the western section of the continent,--that is, the part occupied by the andes. for a considerable distance to the north of the magellan straits, nearly one half of the continental land is of a mountainous character. it is also indented by numerous sounds and inlets, resembling those of tierra del fuego; while the mountains that hang over these deep-water ravines are either timbered, or bare of trees and snow-covered, exhibiting glacier valleys, like those farther south. the whole physical character is similar; and, what is a still more singular fact, we find that in the western, or mountainous part of patagonia, there are no true patagonians; but that there, the water-indians, or fuegians, frequent the creeks and inlets. again, upon the east,--or rather north-east of tierra del fuego,--that angular division of it, which lies to the north of the sebastian channel presents us with physical features that correspond more nearly with those of the plains of patagonia; and upon this part we find tribes of indians that beyond doubt are true patagonians,--and not fuegians, as they have been described. this will account for the fact that some navigators have seen people on the fuegian side that were large-bodied men, clothed in guanaco skins, and exhibiting none of those wretched traits which characterise the fuegians; while, on the other hand, miserable, stunted men are known to occupy the mountainous western part of patagonia. it amounts to this,--that the patagonians _have_ crossed the straits of magellan; and it is this people, and not fuegians, who are usually seen upon the champaign lands north of the sebastian channel. even the guanaco has crossed at the same place,--for this quadruped, as well as a species of deer, is found in the eastern division of tierra del fuego. perhaps it was the camel-sheep--which appears to be almost a necessity of the patagonian's existence--that first induced these water-hating giants to make so extensive a voyage as that of crossing the straits at cape orange! at cape orange the channel is so narrow, one might fancy that the patagonians, if they possessed one half the pedestrian stretch attributed to the giants of old, might have stepped from shore to shore without wetting their great feet! perhaps there are no two people on earth, living so near each other as the patagonians and fuegians, who are more unlike. except in the colour of the skin and hair, there is hardly a point of resemblance between them. the former seems to hate the sea: at all events he never goes out upon, nor even approaches its shore, except in pursuit of such game as may wander that way. he neither dwells near, nor does he draw any portion of his subsistence from the waters of the great deep,--fish constituting no part of his food. all this is directly the reverse with the fuegian. the beach is the situation _he_ chooses for his dwelling-place, and the sea or its shore is his proper element. he is more than half his time, either on it, or _in_ it,--on it in his canoe, and in it, while wading among the tidal shoals in search of fish, mussels, and limpets, which constitute very nearly the whole of his subsistence. it is very curious, therefore, while noting the difference between these two tribes of indians, to observe how each confines its range to that part of the magellanic land that appears best adapted to their own peculiar habits,--those of the patagonian being altogether _terrestrial_, while those of the fuegian are essentially _aquatic_. we have stated elsewhere the limits of the patagonian territory; and shown that, ethnologically speaking they do not occupy the whole northern shore of the magellan straits, but only the eastern half of it. westward towards the pacific the aspect of the land, on both sides of this famous channel, may be regarded as of the same character, though altogether different from that which is seen at the entrance, or eastern end. west of cape negro on one side, and the sebastian passage on the other, bleak mountain summits, with narrow wooded valleys intervening, become the characteristic features. there we behold an incongruous labyrinth of peaks and ridges, of singular and fantastic forms,--many of them reaching above the limits of perpetual snow,--which, in this cold climate descends to the height of four thousand feet. we have seen that these mountains are separated from each other,--not by plains, nor even valleys, in the ordinary understanding of the term; but by _ravines_, the steep sides of which are covered with sombre forests up to a height of one thousand five hundred feet above the level of the sea: at which point vegetation terminates with a uniformity as exact as that of the snow-line itself! these forests grow out of a wet, peaty soil,--in many places impassable on account of its boggy nature; and of this character is almost the whole surface of the different islands. the trees composing the forests are few in species,--those of the greatest size and numbers being the "winter's bark" (_drymys_), of the order _magnoliacae_, a birch, and, more abundantly, a species of beech-tree, the _fagus betuloides_. these last-named trees are many of them of great size; and might almost be called evergreens: since they retain part of their foliage throughout the whole year; but it would be more appropriate to style them _ever-yellows_: since at no period do they exhibit a verdure, anything like the forests of other countries. they are always clad in the same sombre livery of dull yellow, rendering the mountain landscape around them, if possible, more dreary and desolate. the forests of tierra del fuego are essentially worthless forests; their timber offering but a limited contribution to the necessities of man, and producing scarce any food for his subsistence. many of the ravines are so deep as to end, as already stated, in becoming arms or inlets of the sea; while others again are filled up with stupendous glaciers, that appear like cataracts suddenly arrested in their fall, by being frozen into solid ice! most of these inlets are of great depth,--so deep that the largest ship may plough through them with safety. they intersect the islands in every direction,--cutting them up into numerous peninsulas of the most fantastic forms; while some of the channels are narrow _sounds_, and stretch across the land of tierra del fuego from ocean to ocean. the "land of fire" is therefore not an island,--as it was long regarded,--but rather a collection of islands, terminated by precipitous cliffs that frown within gunshot of each other. ofttimes vast masses of rock, or still larger masses of glacier ice, fall from these cliffs into the profound abysses of the inlets below; the concussion, as they strike the water, reverberating to the distance of miles; while the water itself, stirred to its lowest depths, rises in grand surging waves, that often engulf the canoe of the unwary savage. "tierra del fuego" is simply the spanish phrase for "land of fire." it was so called by magellan on account of the numerous fires seen at night upon its shores,--while he and his people were passing through the straits. these were signal fires, kindled by the natives,--no doubt to telegraph to one another the arrival of those strange leviathans, the spanish ships, then seen by them for the first time. the name is inappropriate. a more fit appellation would be the "land of water;" for, certainly, in no part of the earth is water more abundant: both rain and snow supplying it almost continually. water is the very plague of the island; it lies stagnant or runs everywhere,--forming swamps, wherever there is a spot of level ground, and rendering even the declivities of the mountains as spongy as a peat-bog. the climate throughout the whole year is excessively cold; for, though the winter is perhaps not more rigorous than in the same latitude of a northern land, yet the summer is almost as severe as the winter; and it would be a misnomer to call it summer at all. snow falls throughout the whole year; and even in the midsummer of tierra del fuego men have actually perished from cold, at no great elevation above the level of the sea! under these circumstances, it would scarce be expected that tierra del fuego should be inhabited,--either by men or animals of any kind; but no country has yet been reached, too cold for the existence of both. no part of the earth seems to have been created in vain; and both men and beasts are found dwelling under the chill skies of tierra del fuego. the land-animals, as well as the birds, are few in species, as in numbers. the _guanaco_ is found upon the islands; but whether indigenous, or carried across from the patagonian shore, can never be determined: since it was an inhabitant of the islands long anterior to the arrival of magellan. it frequents only the eastern side of the cluster,--where the ground is firmer, and a few level spots appear that might be termed plains or meadows. a species of deer inhabits the same districts; and besides these, there are two kinds of fox-wolves (_canis magellanicus_ and _canis azarae_), three or four kinds of mice, and a species of bat. of water-mammalia there is a greater abundance: these comprising the whale, seals, sea-lions, and the sea-otter. but few birds have been observed; only the white-tufted flycatcher, a large black woodpecker with scarlet crest, a creeper, a wren, a thrush, a starling, hawks, owls, and four or five kinds of finches. the water-birds, like the water-mammalia, muster in greater numbers. of these there are ducks of various kinds, sea-divers, and penguins, the albatross, and sheer-water, and, more beautiful than all, the "painted" or "magellan goose." reptiles do not exist, and insects are exceedingly rare. a few flies and butterflies are seen; but the mosquito--the plague of other parts of south america--does not venture into the cold, humid atmosphere of the land of fire. we now arrive at the _human_ inhabitants of this desolate region. as might be expected, these exhibit no very high condition of either physical or mental development, but the contrary. the character of their civilisation is in complete correspondence with that of their dreary dwelling-place,--at the very bottom of the scale. yes, at the very bottom, according to most ethnologists; even lower down than that of the digger indian, the andaman islander, the bushman of africa, or the esquimaux of the arctic ocean: in fact, any comparison of a fuegian with the last-mentioned would be ridiculous, as regards either their moral or physical condition. below the esquimaux, the fuegian certainly is, and by many a long degree. in height, the tallest fuegian stands about five feet,--not in his boots, for he wears none; but on his naked soles. his wife is just six inches shorter than himself--a difference which is not a bad proportion between the sexes, but in other respects they are much alike. both have small, misshapen limbs, with large knee-caps, and but little calf; both have long masses of coarse tangled hair, hanging like bunches of black snakes over their shoulders; and both are as naked as the hour in which they were born,--unless we call _that_ a dress,--that bit of stinking sealskin which is slung at the back, and covers about a fifth part of the whole body! hairy side turned inward, it extends only from the nape of the neck to a few inches below the hollow of the back; and is fastened in front by means of a thong or skewer passing over the breast. it is rarely so ample as to admit of being "skewered;" and with this scanty covering, in rain and snow, frost and blow,--some one of which is continuously going on,--the shivering wretch is contented. nay, more; if there should happen an interval of mild weather, or the wearer be at work in paddling his canoe, he flings this unique garment aside, as if its warmth were an incumbrance! when the weather is particularly cold, he shifts the sealskin to that side of his body which may chance to be exposed to the blast! the fuegian wears neither hat, nor shirt, waistcoat, nor breeches,--no shoes, no stockings,--nothing intended for clothing but the bit of stinking skin. his vanity, however, is exhibited, not in his dress, to some extent in his adornments. like all savages and many civilised people, he _paints_ certain portions of his person; and his "escutcheon" is peculiar. it would be difficult to detail its complicated labyrinth of "crossings" and "quarterings." we shall content ourselves by stating that black lines and blotches upon a white ground constitute its chief characteristic. red, too, is sometimes seen, of a dark or "bricky" colour. the black is simply charcoal; while the white-ground coat is obtained from a species of infusorial clay, which he finds at the bottom of the peaty streams, that pour down the ravines of the mountains. as additional ornaments, he wears strings of fish-teeth, or pieces of bone, about his wrists and ankles. his wife carries the same upon her neck; and both, when they can procure it, tie a plain band around the head, of a reddish-brown colour,--the material of which is the long hair of the guanaco. the "cloak," already described, is sometimes of sea-otter instead of sealskin; and on some of the islands, where the deer dwells, the hide of that animal affords a more ample covering. in most cases, however, the size of the garment is that of a pocket handkerchief; and affords about as much protection against the weather as a kerchief would. though the fuegian has abundance of hair upon his head, there is none, or almost none on any part of his body. he is beardless and whiskerless as an esquimaux; though his features,--without the adornment of hair,-are sufficiently fierce in their expression. he not only looks ferocious, but in reality is so,--deformed in mind, as he is hideous in person. he is not only ungrateful for kindness done, but unwilling to remember it; and he is cruel and vindictive in the extreme. beyond a doubt he is a _cannibal_; not habitually perhaps, but in times of scarcity and famine,--a true cannibal, for he does not confine himself to eating his _enemies_, but his _friends_ if need be,-and especially the old women of his tribe, who fall the first victims, in those crises produced by the terrible requirements of an impending starvation. unfortunately the fact is too well authenticated to admit of either doubt or denial; and, even while we write, the account of a massacre of a ship's crew by these hostile savages is going the rounds of the press,--that ship, too, a missionary vessel, that had landed on their shores with the humane object of ameliorating their condition. of course such unnatural food is only partaken of at long and rare intervals,--by many communities never,--and there is no proof that the wretched fuegian has acquired an appetite for it: like the feegee and some other savage tribes. it is to be hoped that he indulges in the horrid habit, only when forced to it by the necessities of extreme hunger. his ordinary subsistence is shell-fish; though he eats also the flesh of the seal and sea-otter; of birds, especially the penguin and magellanic goose, when he can capture them. his stomach will not "turn" at the blubber of a whale,--when by good chance one of these leviathans gets stranded on his coast,--even though the great carcass be far gone in the stages of decomposition! the only vegetable diet in which he indulges is the berry of a shrub--a species of arbutus--which grows abundantly on the peaty soil; and a fungus of a very curious kind, that is produced upon the trunks of the beech-tree. this fungus is of a globular form, and pale-yellow colour. when young, it is elastic and turgid, with a smooth surface; but as it matures it becomes shrunken, grows tougher in its texture, and presents the pitted appearance of a honeycomb. when fully ripe, the fuegians collect it in large quantities, eating it without cooking or other preparation. it is tough between the teeth; but soon changes into pulp, with a sweetish taste and flavour,--somewhat resembling that of our common mushroom. these two vegetables--a berry and a cryptogamic plant--are almost the only ones eaten by the natives of tierra del fuego. there are others upon the island that might enable them to eke out their miserable existence: there are two especially sought after by such europeans as visit this dreary land,--the "wild celery" (_opium antarcticum_), and the "scurvy grass" (_cardamine antiscorbutica_); but for these the fuegian cares not. he even knows not their uses. in speaking of other "odd people," i have usually described the mode of building their house; but about the house of the fuegian i have almost "no story to tell." it would be idle to call that a house, which far more resembles the lair of a wild beast; and is, in reality, little better than the den made by the orang-outang in the forests of borneo. such as it is, however, i shall describe it. having procured a number of long saplings or branches,--not always straight ones,--the fuegian sharpens them at one end by means of his mussel-shell knife; and then sticking the sharpened ends into the ground in a kind of circle, he brings the tops all together, and ties them in a bunch,--so as to form a rude hemispherical frame. upon this he lays some smaller branches; and over these a few armfuls of long coarse grass, and the house is "built". one side--that to leeward of the prevailing wind--is left open, to allow for an entrance and the escape of smoke. as this opening is usually about an eighth part of the whole circumference, the house is, in reality, nothing more than a shed or lair. its furniture does not contradict the idea; but, on the contrary, only strengthens the comparison. there is no table, no chair, no bedstead: a "shake-down" of damp grass answers for all. there are no implements or utensils,--if we except a rude basket used for holding the arbutus berries, and a sealskin bag, in which the shell-fish are collected. a bladder, filled with water, hangs upon some forking stuck against the side: in the top of this bladder is a hole, from which each member of the family takes a "suck," when thirst inclines them to drink! the "tools" observable are a bow and arrow, the latter headed with flint; a fish spear with a forked point, made from a bone of the sea-lion; a short stick,--a woman's implement for knocking the limpets from the rocks; and some knives, the blades of which are sharpened shells of the mussel,--a very large species of which is found along the coast. these knives are simply manufactured. the brittle edge of the shell--which is five or six inches in length--is first chipped off, and a new edge formed by grinding the shell upon the rocks. when thus prepared, it will cut not only the hardest wood, but even the bones of fish; and serves the fuegian for all purposes. outside the hut, you may see the canoe,--near at hand too,--for the shieling of the fuegian universally stands upon the beach. he never dwells in the interior of his island; and but rarely roams there,--the women only making such excursions as are necessary to procure the berry and the mushroom. the woods have no charms for him, except to afford him a little fuel; they are difficult to be traversed on account of the miry soil out of which the trees grow; and, otherwise, there is absolutely nothing to be found amidst their gloomy depths, that would in any way contribute to his comfort or sustenance. he is therefore essentially a dweller on the shore; and even there he is not free to come and go as he might choose. from the bold character of his coast, there are here and there long reaches, where the beach cannot be followed by land,--places where the water's edge can only be reached, and the shell-fish collected, by means of some sort of navigable craft. for this purpose the fuegian requires a canoe; and the necessity of his life makes him a waterman. his skill, however, both in the construction of his craft, and the management of it, is of a very inferior order,-infinitely inferior to that exhibited either by the esquimaux or the water-indians of the north. his canoe is usually made of the bark of a tree,--the birch already mentioned. sometimes it is so rudely shaped, as to be merely a large piece of bark shelled from a single trunk, closed at each end, and tied tightly with thong of sealskin. a few cross-sticks prevent the sides from pressing inward; while as many stays of thong keep them from "bulging" in the contrary direction. if there are cracks in the bark, these are caulked with rushes and a species of resin, which the woods furnish. with this rude vessel the fuegian ventures forth, upon the numerous straits and inlets that intersect his land; but he rarely trusts himself to a tempestuous sea. if rich or industrious, he sometimes becomes the possessor of a craft superior to this. it is also a bark canoe, but not made of a single "flitch." on the contrary, there are many choice pieces used in its construction: for it is fifteen feet in length and three in width amidships. its "build" also is better,--with a high prow and stern, and cross-pieces regularly set and secured at the ends. the pieces of bark are united by a stitching of thongs; and the seams carefully caulked so that no water can enter. in this vessel, the fuegian may embark with his whole family,--and his whole furniture to boot,--and voyage to any part of his coast. and this in reality he does; for the "shanty" above described, is to him only a temporary home. the necessities of his life require him to be continually changing it; and a "removal," with the building of a new domicile, is a circumstance of frequent recurrence. not unfrequently, in removing from one part of the coast to another, he finds it safer making a land journey, to avoid the dangers of the deep. in times of high wind, it is necessary for him to adopt this course,-else his frail bark might be dashed against the rocks and riven to pieces. in the land journey he carries the canoe along with him; and in order to do this with convenience, he has so contrived it, that the planks composing the little vessel can be taken apart, and put together again without much difficulty,--the seams only requiring to be freshly caulked. in the transport across land, each member of the family carries a part of the canoe: the stronger individuals taking the heavier pieces,--as the side and bottom planks,--while the ribs and light beams are borne by the younger and weaker. the necessity of removal arises from a very natural cause. a few days spent at a particular place,--on a creek or bay,--even though the community be a small one, soon exhausts the chief store of food,--the mussel-bank upon the beach,--and, of course, another must be sought for. this may lie at some distance; perhaps can only be reached by a tedious, and sometimes perilous water-journey; and under these circumstances the fuegian deems it less trouble to carry the mountain to mahomet, than carry mahomet so often to the mountain. the transporting his whole menage, is just as easy as bringing home a load of limpets; and as to the building of a new house, that is a mere bagatelle, which takes little labour, and no more time than the erection of a tent. some fuegians actually possess a tent, covered with the skins of animals; but this a rare and exceptional advantage; and the tent itself of the rudest kind. the fuegian has his own mode of procuring fire. he is provided with a piece of "mundic," or iron pyrites, which he finds high up upon the sides of his mountains. this struck by a pebble will produce sparks. these he catches upon a tinder of moss, or the "punk" of a dead tree, which he knows how to prepare. the tinder once ignited, is placed within a roundish ball of dry grass; and, this being waved about in circles, sets the grass in a blaze. it is then only necessary to communicate the flame to a bundle of sticks; and the work is complete. the process, though easy enough in a climate where "punk" is plenty, and dry grass and sticks can be readily procured, is nevertheless difficult enough in the humid atmosphere of tierra del fuego,--where moss is like a wet sponge, and grass, sticks, and logs, can hardly be found dry enough to burn. well knowing this, the fuegian is habitually careful of his fire: scarce ever permitting it to go out; and even while travelling in his canoe, in search of a "new home," side by side with his other "penates" he carries the fire along with him. notwithstanding the abundance of fuel with which his country provides him, he seems never to be thoroughly warm. having no close walls to surround him, and no clothing to cover his body, he suffers almost incessantly from cold. wherever met, he presents himself with a shivering aspect, like one undergoing a severe fit of the ague! the fuegians live in small communities, which scarce deserve the name of "tribes," since they have no political leader, nor chief of any description. the conjuror--and they have him--is the only individual that differs in any degree from the other members of the community; but his power is very slight and limited; nor does it extend to the exercise of any physical force. religion they have none,--at least, none more sacred or sanctified than a vague belief in devils and other evil spirits. although without leaders, they are far from being a peaceful people. the various communities often quarrel and wage cruel and vindictive war against one another; and were it not that the boundaries of each association are well-defined, by deep ravines and inlets of the sea, as well as by the impassable barriers of snow-covered mountains, these warlike dwarfs would thin one another's numbers to a far greater extent than they now do,--perhaps to a mutual extermination. fortunately the peculiar nature of their country hinders them from coming very often within fighting distance. their whole system of life is abject in the extreme. although provided with fires, their food is eaten raw; and a fish taken from the water will be swallowed upon the instant--almost before the life is gone out of it. seal and penguin flesh are devoured in the same manner; and the blubber of the whale is also a raw repast. when one of these is found dead upon the beach,--for they have neither the skill nor courage to capture the whale,--the lucky accident brings a season of rejoicing. a fleet of canoes--if it is to be reached only by water--at once paddle towards the place; or, if it be an overland journey, the whole community--man, woman, and child--start forth on foot. in an hour or two they may be seen returning to their hut village, each with a large "flitch" of blubber flapping over the shoulders, and the head just appearing above, through a hole cut in the centre of the piece,--just as a mexican ranchero wears his "serape," or a denizen of the pampas his woollen "poncho." a feast follows this singular procession. like the esquimaux of the north, the fuegian is very skilful in capturing the seal. his mode of capturing this creature, however, is very different from that employed by the "sealer" of the arctic seas; and consists simply in stealing as near as possible in his canoe, when he sees the animal asleep upon the surface, and striking it with a javelin,--which he throws with an unerring aim. we have already observed that the principal subsistence of the fuegian is supplied by the sea; and shell-fish forms the most important item of his food. these are mussels, limpets, oysters, and other kinds of shell-fish, and so many are annually consumed by a single family, that an immense heap of the shells may be seen not only in front of every hut, but all along the coast of the islands, above high-water mark,-wherever a tribe has made its temporary sojourn. there is a singular fact connected with these conglomerations of shells, which appears to have escaped the observations of the magellanic voyagers. it is not by mere accident they are thus collected in piles. there is a certain amount of superstition in the matter. the fuegian believes that, were the shells scattered negligently about, ill-luck would follow; and, above all, if the emptied ones were thrown back into the sea: since this would be a warning of destruction that would frighten the living bivalves in their "beds," and drive them away from the coast! hence it is that the shell-heaps are so carefully kept together. in collecting these shell-fish, the women are the chief labourers. they do not always gather them from the rocks, after the tide has gone out; though that is the usual time. but there are some species not found in shallow water, and therefore only to be obtained by diving to the bottom after them. of this kind is a species of _echinus_, or "sea-urchin," of the shape of an orange, and about twice the bulk of one,--the whole outside surface being thickly set with spines, or protuberances. these curious shell-fish are called "sea-eggs" by the sailor navigators; and constitute an important article of the food of the fuegian. it is often necessary to dive for them to a great depth; and this is done by the fuegian women, who are as expert in plunging as the pearl-divers of california or the indian seas. fish is another article of fuegian diet; and many kinds are captured upon their coasts, some of excellent quality. they sometimes obtain the fish by shooting them with their arrows, or striking them with a dart; but they have a mode of catching the finny creatures, which is altogether peculiar: that is to say, _hunting them with dogs_! the fuegians possess a breed of small fox-like dogs, mean, wretched-looking curs, usually on the very verge of starvation,--since their owners take not the slightest care of them, and hardly ever trouble themselves about feeding them. notwithstanding this neglect, the fuegian dogs are not without certain good qualities; and become important auxiliaries to the fuegian fisherman. they are trained to pursue the fish through the water, and drive them into a net, or some enclosed creek or inlet, shallow enough for them to be shot with the arrow. in doing this the dogs dive to the bottom; and follow the fish to and fro, as if they were amphibious carnivora, like the seals and otters. for this useful service the poor brutes receive a very inadequate reward,--getting only the bones as their portion. they would undoubtedly starve, were it not that, being left to shift for themselves, they have learnt how to procure their own food; and understand how to catch a fish now and then _on their own account_. their principal food, however, consists in shell-fish, which they find along the shores, with polypi, and such other animal substances as the sea leaves uncovered upon the beach after the tide has retired. a certain kind of sea-weed also furnishes them with an occasional meal, as it does their masters,--often as hungry and starving as themselves. in his personal habits no human being is more filthy than the fuegian. he never uses water for washing purposes; nor cleans the dirt from his skin in any way. he has no more idea of putting water to such use, than he has of drowning himself in it; and in respect to cleanliness, he is not only below most other savages, but below the brutes themselves: since even these are taught cleanliness by instinct. but no such instinct exists in the mind of the fuegian; and he lives in the midst of filth. the smell of his body can be perceived at a considerable distance; and hotspur's fop might have had reasonable grounds of complaint, had it been a fuegian who came between the "wind and his nobility." to use the pithy language of one of the old navigators, "the fuegian stinks like a fox." fairly examined, then, in all his bearings,--fairly judged by his habits and actions,--the fuegian may claim the credit of being the most wretched of our race. -----------------------------------------------------------------------the end.