The conventionally extravagant lamentation which was required of the Roman bride[[122]] is regarded by Rossbach (p. 329) as a survival of marriage by capture, and may be paralleled amongst many Aryan nations: with the Hindoos it was part of the officially prescribed programme;[[123]] in the Oberpfalz it is obligatory; in Bohemia and in Russia it is required by public opinion.[[124]]

The evidence of folk-lore (so far as it is called for by the Romane Questions) that the Aryans obtained wives by capturing the women of other households or family groups than their own, has now been stated. It does not suffice to show that an Aryan was forbidden to marry a woman of his own household; but a wider survey of early Aryan wedding-customs would bring out this important fact, that however other parts of the ceremony vary, there is one which is always present, and which may be regarded as essential—that is the domum deductio, the bringing-home of the bride; and from this fact we may fairly draw the conclusion that normally, and—so strong is custom—probably uniformly, the bride and the bridegroom belonged to different households, and that the bride came to live in the home of the bridegroom.

Marriage by purchase does not happen to be mentioned in the Romane Questions, nor is it necessary to prove what is universally admitted. All that need be remarked here is that purchase was not necessarily preceded by a state of things in which capture prevailed; frequently it may have been a peaceable remedy for the grievances caused by capture, but quite as often it may have been practised side by side with capture from the beginning. Further, the purchase, like the capture, of wives implies that husband and wife belonged to different households; and purchase indicates that the wife thus bought was the property of the husband, or at least that she was subject to him.

Let us now turn to the evidence showing that the family was patriarchal and agnatic. The evidence is furnished by the comparative study of law, especially the law regulating the order in which the relatives of a dead man shall succeed to his property. The order of succession prescribed by the earliest legal codes is strikingly similar among all the Aryan peoples; first, the deceased's male descendants to the third generation (his sons, grandsons, and great-grandsons); next, the male descendants of the deceased's father to the third generation (i.e., the deceased's brothers, nephews, and grand-nephews); then the male descendants of the deceased's grandfather to the third generation (i.e., his uncles, cousins, and their children); and finally, the male descendants of his great-grandfather to the third generation (i.e., his great-uncles, his first cousins once removed, and his second cousins once removed). Beyond these degrees, kin was not counted; and if no heir were forthcoming within them, the property went, amongst the Hindoos, to those of the same name as the deceased; amongst the Romans, to the members of his gens; in Crete, to the village community. What is the origin of this unanimous and well-marked distinction between the Near and the Remote Kin? Why were the anchisteis, "the nearest relations," as the Greeks technically named them, so sharply distinguished from the others?

To begin with, it is clear that the distinction, being common to all the Aryans, was not developed subsequently to their dispersion, but is pre-historic—indeed, pro-ethnic. Hence it follows that the distinction was not the work of any legislator or of any individual; it could not have been a law enacted by a lawgiver and enforced by the State under pains and penalties, for the simple reason that the Aryans, previous to their dispersion, were not organised into a State, and had no government to issue or execute laws. But before Law, Custom was, and "Kin and Custom go together and imply each other, as do Law and State. Law is the enactment of the State—Custom is the habit of the Kin. And as Custom precedes Law, so the State is preceded by kin or sib associations. The earliest form of the State is modelled on that of the sib associations out of which it is developed, and the first laws promulgated by the State are but the old customs committed to writing."[[125]]

In what pro-ethnic Aryan custom, then, are we to seek the origin of the clear and deep-cut line between the Near and the Remote Kin? The answer is furnished by what is known among the Slavonians as the house community, and to Anglo-Indian lawyers as "the joint undivided family." As it exists now in India, the joint undivided family consists, or may consist, of the sons, grandsons, and great-grandsons of a man (deceased), who, on the death of their common ancestor, do not separate, but continue to live on the undivided estate and worship their deceased ancestor as their house-spirit. The family, as defined by the Judicial Committee of the Privy Council,[[126]] is "joint in food, worship, and estate."

Now, the relatives whom the earliest Aryan codes, the laws of the Twelve Tables, the laws of Solon, of Menu, the Gortyn Code, &c., specify as a man's heirs-at-law are in every case precisely those relatives who belonged, or might at some time have belonged, to the same joint undivided family as the deceased. It is worth while to note that at different times a man might belong to four different joint undivided families: he might be born into a family which still united in worshipping the spirit of his great-grandfather: and thus his cousins, his first cousins once removed, and his second cousins once removed, would dwell in the same household with him. His grandfather might then die and become a house-spirit: in that event, his grand-uncle (and descendants) would have to set up a family of his own, for they only can belong to a joint undivided family who are descended from a common house-father. Now, my grand-uncle, being the brother of my grandfather, is not descended from my grandfather, therefore cannot worship his spirit, therefore cannot belong to the joint undivided family which worships my grandfather's spirit. On the other hand, the family, of which my (deceased) grandfather is the house-spirit, includes my grandfather's descendants to the third generation, i.e., includes not only my cousins, but also their sons. This (cousins' sons) is the limit of the second joint undivided family to which it is possible for a man to belong. Thirdly, when my father becomes a house-spirit, and is worshipped by his children's children, I dwell in the same household as my nephews and grand-nephews. Finally, when I am gathered to my fathers, I dwell, in the spirit, with my sons, grandsons, and great-grandsons.

Here we obviously have the key to the order of succession prescribed by the earliest Aryan codes: my own descendants (if any) are called first, because they constitute the joint undivided family, with which, at the time of dying, I am presumably dwelling. My father's descendants come next, because that was the family I had previously belonged to; and on the same principle my grandfather's descendants, and then those of my great-grandfather were called.

So long as the joint undivided family was a living institution, so long there was no need (as there was no thought) of specifying who a man's heirs were, and so long a man could be in no doubt as to who his Near Kin were—they were those who had been brought up in the same family as himself. It was only when this unwieldy form of family came to be disintegrated by the advance of civilisation that it became necessary to specify the order of succession, and to determine who were a man's Near Kin; and, as we have seen, the earliest laws on this subject are but the old customs reduced to writing.

Two facts of importance in the history of Aryan marriage have now been shown. The first, inferred from the domum deductio and from the existence of marriage by capture and by purchase, is that amongst the undispersed Aryans a man customarily abstained from marrying a woman belonging to his own family group. The second is that the family groups in which the Aryans lived, if not originally, certainly for some time before their dispersion, were joint undivided families. The Aryan was averse to marrying women of his Near Kin; the difficult question now arises, whether he was equally averse to marrying into his Remote Kin? The "prohibited degrees" of historic times do not help us much in answering this question. The Athenians had lost the Aryan aversion to marriages within the near kin: they married their cousins, and even half-sisters. There is no evidence to show that the Romans ever abstained from marrying their Remote Kin. Rossbach maintains that the prohibition extended only to first cousins; Klenze, Walter, Burchardy, Göttling, and Gerlach make it go as far as the extreme limit of the Near Kin, i.e., to second cousins once removed—no writer on Roman law or marriage supports a wider prohibition; and the jus osculi[[127]] (which, by the way, was accorded by men to men as well as by women to men) extended only to the near kin. The Hindoos, again, were averse to marriage between any persons of the same name.