as a survival of promiscuous intercourse. Neither of these conditions is implied by the general indifference with respect to fatherhood; it is, on the contrary, the indifference which already existed which made it so easy for polyandry to arise in every circle of which the members lived in a joint household. But the readiness. with which it was adopted does not entitle us to declare that polyandry was at any time the universal form of marriage. McLennan, who believes in such universality, deduces other facts from it; as we have already said, he traces a connection between polyandry and the Levirate and Niyoga, so that where these occur, polyandry must formerly have prevailed. We must now consider these two phenomena. CHAPTER III. THE LEVIRATE AND NIYOGA. The Levirate-Jews and Hindus-Maine's theory-Mayne's theory-Son of appointed daughter-Juridical character of fatherhood-NiyogaMarriage and patria potestas-The Levirate and Polyandry-Spencer's theory—Iranian Levirate and Niyoga-Ossetian Levirate―Juridical motherhood. THE term Levirate is given to the strange custom which enjoins a man to marry the widow of his brother, if he die childless, in order to raise up children to the dead man, to whom the children produced by such a marriage were supposed to belong. This obligation only existed if the man was altogether childless, for if he left a daughter the matter took another turn, and the daughter's son took a son's place. There is no good reason against the opinion that the constraining duty of raising up seed to the deceased brother was prompted by the eager desire to have a son who might offer the needful sacrifices to the dead man. But why such a wish should impose this duty of the Levirate on the brother is altogether unintelligible if we forget the juridical character of fatherhood among primi tive men. The phenomenon is best known among the Jews and the Hindus, and is given in the following words : "If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not marry without unto a stranger: her husband's brother shall go in unto her, and take her to him to wife, and perform the duty of an husband's brother unto her. And it shall be, that the firstborn which she beareth shall succeed in the name of his brother which is dead, that his name be not put out of Israel. And if the man like not to take his brother's wife, then let his brother's wife go up to the gate unto the elders, and say, My husband's brother refuseth to raise up unto his brother a name in Israel, he will not perform the duty of my husband's brother. Then the elders of his city shall call him, and speak unto him: and if he stand to it, and say, I like not to take her; then shall his brother's wife come unto him in the presence of the elders, and loose his shoe from off his foot, and spit in his face, and shall answer and say, So shall it be done unto that man that will not build up his brother's house. And his name shall be called in Israel, The house of him that hath his shoe loosed."1 It is also written in the Manu, that "On failure of issue by the husband, if he be of the servile class, the desired offspring may be procreated, either by his brother or some other sapinda, on the wife, who has been duly authorized: Sprinkled with clarified butter, silent, in the night, let the kinsman thus appointed beget one son, but a second by no means, on the widow or childless wife: By men of twice-born classes no widow, or childless wife, must be authorized to conceive by any other man than her lord." 2 We may here note that the Hindus combine the Levirate with the Niyoga, according to which the childless wife might be espoused in her husband's lifetime. This practice was unknown to the Jews; by the Jewish law the Levir was actually married to the widow, but this was not the case with the Hindus. It has been asserted that among the Jews the Levir obligation was only incumbent 1 Deut. xxv. 5-10. See also Judah and Tamar (Gen. xxxviii.). on the brother who had lived in the same city or district with the dead man, by which, perhaps, the joint family group is meant; or, again, that it was only in force when the surviving brother was unmarried.1 We shall pre sently be able to estimate the force of this distinction. Sir Henry Maine, in his work on "Early Law and Custom," has attempted to explain the Hindu Levirate by their desire for offspring, and he connects it with other customs which are still in force, and which enable the sonless man to obtain sons without having begotten them. He mentions as the most important of these customs, adoption and the consecration of daughters, that is, constituting the daughter's firstborn son the son and heir. He regards these two usages as the most primitive, and he believes that the Levirate, and subsequently the Niyoga, were only degenerate forms, arising from misuse of the legal fictions which are customary in primitive communities. The conflict between belief and actual facts is really amazing, but it proves to us what power is exerted by legal ideas in primitive communities. And to none of these is a man more indebted than to those which established an artificial production of kinsfolk.2 We shall see presently that our view of its connection with these ideas differs from that expressed by Maine; but for the present we lay no special stress upon this fact, since the thing itself, adoption, etc., actually occurs, and the child. thereby becomes responsible to the new father, as if he were really its progenitor. It may, however, be questioned whether a blood-tie was supposed to be created by this expedient, and not rather a merely legal connection, which would be of equal strength and validity, whether it took place at the child's birth or at some later period. J. D. Mayne has put forward a theory with reference to the character of the paternal relation which is in agreement with the point of view advocated by us. Michaelis, vol. ii. p. 207. • Maine, Ancient Law, p. 130. According to law, the man to whom the mother belonged counted the son to be his own. And the son's owner could give him up to be the son of another man, just as an emancipated son might give himself up to any one he pleased to be his father.1 Starting from this juridical point of view, the Levirate and the Niyoga present no special difficulty. Sir Henry Maine thinks that the Niyoga is of later date than the Levirate, but J. D. Mayne is, I believe, justified in regarding the Levirate as merely an enlarged form of the Niyoga, which came into effect after a man's death. The indissoluble character of marriage would explain why the Levir child was ascribed to the dead husband, just as the Niyoga child was ascribed to him when he was still alive. Sir Henry Maine's process of thought on this point does not seem to be quite clear; we cannot fail to remark a certain vagueness in his conception of the part played by the tie of blood. Maine himself considers that kinship was, speaking generally, based upon authority; and yet he seeks to connect the Levirate and Niyoga with an imaginary tie of blood between father and son. In order to do this, he selects as his starting-point the father's right of appointing the firstborn son of his daughter, that is, the dedication of the daughter. (See Table, next page.) J. D. Mayne explains this classification of sons by the supposition that it was in accordance with the old order that a girl without brothers should return to the men of her own family and be to them as a son. In this way the father continued to be the guardian of his married daughter, and might take her son, if he so pleased. This only took place when the contract of marriage included an express reservation of the right of guardianship.2 McLennan expresses a similar opinion, and he is directly opposed to Maine's attempt to prove that by a fictitious arrangement the mother's father was able to regard his daughter's son as the fitting represen1 J. D. Mayne, p. 59. 2 Ibid., p. 68. |