the penalty has long wavered between death and a fine, fines become the rule, so long as the kins are allowed to settle the matter.  If, however, the community comes to take cognizance of the offence, severer measures ensue.  The one noticeable difference in the two developments is the following.  Whereas murder is an offence against the chief’s “majesty,” and as such a criminal offence, adultery, like theft, with which primitive law is wont to associate it as an offence against property, tends to remain a purely civil affair.  Kafir law, for example, according to Maclean, draws this distinction very clearly.

It remains to add as regards adultery that, so far, we have only been considering the punishment that falls on the guilty man.  The guilty woman’s fate is a matter relating to a distinct department of primitive law.  Family jurisdiction, as we find it, for instance, in an advanced community such as ancient Rome, meant the right of the pater familias, the head of the house, to subject his familia, or household, which included his wife, his children (up to a certain age), and his slaves, to such domestic discipline as he saw fit.  Such family jurisdiction was more or less completely independent of state jurisdiction; and, indeed, has remained so in Europe until comparatively recent times.

What light, then, does the study of primitive society throw on the first beginnings of family law as administered by the house-father?  To answer this question at all adequately would involve the writing of many pages on the evolution of the family.  For our present purpose, all turns on the distinction between the matripotestal and the patripotestal family.  If the man and the woman were left to fight it out alone, the latter, despite the “shrewish sanction” that she possesses in her tongue, must inevitably bow to the principle that might is right.  But, as long as marriage is matrilocal—­that is to say, allows the wife to remain at home amongst male defenders of her own clan—­she can safely lord it over her stranger husband; and there can scarcely be adultery on her part, since she can always obtain divorce by simply saying, Go!  Things grow more complicated when the wife lives amongst her husband’s people, and, nevertheless, the system of counting descent favours her side of the family and not his.  Does the mere fact that descent is matrilineal tend to imply on the whole that the mother’s kin take a more active interest in her, and are more effective in protecting her from hurt, whether undeserved or deserved?  It is no easy problem to settle.  Dr. Steinmetz, however, in his important work on The Evolution of Punishment (in German), seeks to show that under mother-right, in all its forms taken together, the adulteress is more likely to escape with a light penalty, or with none at all, than under father-right.  Whatever be the value of the statistical method that he employs, at any rate it makes out the death penalty to be inflicted in only a third of his cases under the former system, but in about half under the latter.