Chapter I · THE PATRIARCHAL THEORY

[Bibliographical Note I.—The modern history of the patriarchal theory begins with Filmer's Patriarchia (London, 1680), in which the author finds in the Hebrew family a justification of the "divine prerogative" of kings; and the trenchant reply of Locke in The Two Treatises on Civil Government (London, 1690), reprinted with Filmer's work in the ninth volume of Morley's Universal Library. But the theory is especially associated with the name of Sir Henry Maine. His Ancient Law (New York, 1861), aside from its leading hypothesis, is one of the most suggestive books of the century. It was followed by the Early History of Institutions (New York, 1875); the Village Communities (New York, 1876); and Early Law and Custom (New York, 1883). In this last work he contributes supplementary chapters on such topics as "Ancestor-Worship" and "East European House Communities," and he replies to his critics. Maine is criticised by Spencer, Principles of Sociology (New York, 1879), Vol. I, Part III, chap. ix; and by McLennan, Patriarchal Theory (London, 1885), who, on the negative side, is fairly successful in confuting his adversary. Hearn's Aryan Household (London, 1879) and the Ancient City (Boston, 1877) of Fustel de Coulanges take practically the same view of primitive society as Maine, while particularly emphasizing ancestor-worship and the genealogical organization.

For the early Aryans and the Hindus see Zimmer's Alt-indisches Leben (Berlin, 1879); Delbrück's Die indogermanischen Verwandtschaftsnamen (Leipzig, 1885); Schrader's Sprachvergleichung und Urgeschichte (Jena, 1883), or the English translation by Jevons (London, 1890); Zmigrodski's Die Mutter bei den Völkern des arischen Stammes (Munich, 1886); and especially Leist's epoch-making works, Graeco-italische Rechtsgeschichte (Jena, 1884) and the Alt-arisches Jus Gentium (Jena, 1889). Of first-rate value also are the Rechtshistorische und rechtsvergleichende Forschungen (Part III, on Indisches Ehe- und Familienrecht) and the other papers of the indefatigable Kohler. Of these the following are particularly interesting in this connection, all found in the Zeitschrift für vergleichende Rechtswissenschaft: "Rechtsverhältnisse auf dem ostind. Archipel u. den westl. Karolinen," ZVR., VI, 344-50; "Gewohnheitsrechte des Pendschabs," ibid., VII, 161-239; "Indische Gewohnheitsrechte," ibid., VIII, 89-147, 262-73; "Gewohnheitsrechte von Bengalen," ibid., IX, 321-60; "Gewohnheitsrechte der Provinz Bombay," ibid., X, 64-142, 161-88; "Gewohnheitsrechte der ind. Nordwestprovinzen," ibid., XI, 161-95; and, for comparison, "Die Ionsage und Vaterrecht," ibid., V, 407-14; "Studien über künstliche Verwandtschaft," ibid., V, 415-40; and "Das Recht der Armenier," ibid., VII, 385-436. As in the last-named paper, the influence of Roman law may be traced in Mégavorian, Étude ethnographique et juridique sur la famille et le mariage arméniens (Paris, 1894). Hass, "Die Heirathsgebrāuche der alten Inder nach den Grihyasûtra," in Weber's Indische Studien, V, 267-412 (Berlin, 1862), reveals in an admirable way the religious spirit pervading the ancient Hindu matrimonial life. This study suggested the excellent monograph of Weber, "Vedische Hochzeitssprüche," ibid., V, 177-266; while the conclusions of both Haas and Weber are ably supported, with the aid of additional sources, by the more elaborate paper of Winternitz, "Das altindische Hochzeitsrituell," in Denkschriften der kais. Akad. d. Wiss., phil.-hist. Klasse, XL, 1-113 (Vienna, 1892). In this connection, for comparison, may be read Mackenzie, "An Account of the Marriage Ceremonies of the Hindus and Mahommedans as Practised in the Southern Peninsula of India," in Transactions of the Royal Asiatic Society, III (London, 1835); and Lushington, "On the Marriage Rites and Usages of the Jâts of Bharatpur," in Journal of the Asiatic Society of Bengal, II, 273-97 (Calcutta, 1833). Especially important are Bernhöft's "Die Grundlagen der Rechtsentwicklung bei den indogermanischen Völkern," in ZVR., II, 253-328; his "Altindisches Familienorganisation," ibid., IX, 1-45; and his "Das Gesetz von Gortyn," ibid., VI, 281-304, 430-40. A popular, but in the main uncritical, book is Clarisse Bader's La femme dans l'Inde antique (2d ed., Paris, 1867). Similar in plan and treatment are her La femme biblique (new ed., Paris, 1873); La femme grecque (2d ed., Paris, 1873); and La femme romaine (2d ed., Paris, 1877). A strong defense of the dignified position of the ancient Indic woman, based on the sources, may be found in Jacolliot's La femme dans l'Inde (Paris, 1877); and Mary Frances Billington is a vigorous champion of the social status of modern Woman in India (London, 1895). See also Pizzi, "Les coutumes nuptiales aux temps héroïques de l'Iran," in La Muséon, II, 3 (1883); Vidyasagar, On Widow-Marriages among the Hindus (Calcutta, 1855); and Schlagintweit, "Die Hindu-Wittwe in Indien," in Globus, XLIII (1883). Among the best technical writings are Mayne's Hindu Law and Usage (Madras and London, 1888); Jolly's Hindu Law of Partition (Calcutta, 1885); his Rechtliche Stellung der Frauen bei den alten Indern (Munich, 1876); Tupper's Punjab Customary Law (Calcutta, 1881); and Gooroodass's "The Hindu Law of Marriage and Stridahn," in Tagore Law Lectures, 1878 (Calcutta, 1879). Max Müller's series of Sacred Books contains Apastamba, Gautama, Visnu, and the other Sūtras, as well as the later versified law-books of Manu and Yājñavalkya, with other sources of ancient Indic custom. Burnell and Hopkins's Manu (London, 1891) is an excellent edition; and Jolly has a German translation of Books VIII and IX in ZVR., III, 232-83; IV, 321-61. For each important point these sources are thoroughly collated in the writings of Kohler, Leist, and Jolly, above referred to.

For the Slavs, Krauss's Sitte und Brauch der Südslaven (Vienna, 1885) is the most valuable treatise. See also Turner, Slavisches Familienrecht (Strassburg, 1874); and Kovalevsky's Modern Customs and Ancient Laws of Russia (London, 1891), in which the author criticises and corrects Sir Henry Maine on important points. For Greece, in addition to Leist's works above mentioned, see the paper of Campaux, Du mariage à Athènes (Paris, 1867); that of Moy, "La famille dans Homère," in Revue des cours littéraires, 8 mars 1869; Stegeren, De conditione civili feminarum atheniensium (Zwallae, 1839); Ouvré, Observations sur le régime matrimonial au temps d'Homère (Paris, 1886); Lasaulx, Zur Geschichte und Philosophie der Ehe bei den Griechen (Munich, 1852); especially Hruza's Die Ehebegründung nach attischem Rechte (Erlangen and Leipzig, 1892); and his Polygamie und Pellikat nach griechischem Rechte (Erlangen and Leipzig, 1894).

On the matrimonial institutions of the Romans consult Marquardt's Privatleben; Lange's Römische Alterthümer; Smith's Dictionary of Greek and Roman Antiquities; Müller's Handbuch; Bernhöft's Staat und Recht der rom. Königszeit (Stuttgart, 1882); Karlowa's Die Formen der röm. Ehe und Manus (Bonn, 1868); Rossbach's Die röm. Ehe (Stuttgart, 1853); his Römische Hochzeits- und Ehedenkmäler (Leipzig, 1871); Laband's "Rechtliche Stellung der Frauen im altröm. und germanischen Recht," in Zeitschrift für Völkerpsychologie, III (Berlin, 1865); and Bouchez-Leclercq's Manuel des inst. romaines (Paris, 1886). From the mass of writings which are of service for this and the four subsequent chapters may also be mentioned Brissonius, De ritu nuptiarum (Paris, 1564); his De jure connubiorum (Paris, 1564); Hotman, De veteri ritu nuptiarum observatio; his De sponsalibus; his De ritu nuptiarum et jure matrimoniorum—all published and bound with the two works of Brissonius (Leyden, 1641); Grupen, De uxore romana (Hannover, 1727); Ayrer, De jure connubiorum apud romanos (Göttingen, 1736); the anonymous Dei riti delle antiche nozze romane (Perugia, 1791); Maanen, De muliere in manu et in tutela (Lugd. Bat., 1823); Schultz, De jure succedendi feminarum apud romanos (Trajecti ad Rhenum, 1826); Chamblain, De la puissance paternelle chez les romains (Paris, 1829); Eggers, Wesen und Eigenthümlichkeiten der altröm. Ehe mit Manus (Altona, 1833); Mahlmann, De matrimonii veterum romanorum ineundi (Halle, 1845); Hase, De manu juris romani (Halle, 1847); Gerlach, De romanorum connubio (Halle, 1851); Dubief, Qualis fuerit familia romana tempore Plauti (Molini, 1859); Pagés, La famille romaine (Toulouse, 1892); Louïse, Du sénatus-consulte velléien et de l'incapacité de la femme mariée (Chateau-Thierry, 1873); Bourdin, De la condition de la mère en droit romain et en droit français (Paris, 1881); Salomon, Du mariage du droit des gens et en général des mariages sans connubium (Paris, 1889); Desminis, Die Eheschenkung nach röm. und insbesondere nach byzantinischem Recht (Athens, 1897); and Ciccotti, Donne e politica negli ultimi anni della republica romana (Milan, 1895). The criticisms of Kuntze, Excurse über röm. Recht (2d ed., Leipzig, 1880), and Esmein, Mélanges d'histoire du droit et de critique (Paris, 1886), are of great value on various important questions. Compare also Couch, "Woman in Early Roman Law," in Harvard Law Review, VIII (Cambridge, 1895); Picot, Du mariage romain, chrétien, et français (Paris, 1849); Monlezun, Condition civile de la femme mariée à Rome et en France (Paris, 1878); Tardieu, De la puissance paternelle en droit romain et en droit français (Paris, 1875); and Cornil, "Contribution à l'étude de la patria potestas," in Nouv. rev. hist. de droit, XXI, 416-85 (Paris, 1897). Gide's excellent Étude sur la condition privée de la femme (2d ed., Paris, 1885) deals with the laws of Greece, Rome, and other nations. Poste's edition of Gaius's Institutionum juris civilis commentarii quatuor (Oxford, 1875) is an indispensable source; and among legal treatises are particularly to be commended Muirhead's Introduction to the Private Law of Rome (Edinburgh, 1886); Puchta's Institutionen; Moyle's Institutionum Libri (Oxford, 1890); Rein, Privatrecht (Leipzig, 1836); and especially Sohm's Institutes (Oxford, 1892), by far the best work on the subject for historical purposes, showing the rare insight, clearness of analysis, and vigorous style peculiar to the author. Most readers will find the short Introduction of Hadley and the excellent Outlines of Professor Morey sufficient. For the general subject of marriage and the family the Zeitschrift für vergleichende Rechtswissenchaft (Stuttgart, 1878-96) is indispensable; while the Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft and the Zeitschrift für Ethnologie are also of constant service.

For the literature of Arabian and Hebrew matrimonial institutions, respectively, see Bibliographical Notes II and IV.

The student who has not yet seriously attacked the literature of the subject will do well to begin with the following: Tylor, "On a Method of Investigating the Development of Institutions, Applied to Laws of Marriage and Descent," in Journal of Anth. Inst., XVIII, No. 3; Bernhöft's "Zur Geschichte des europäischen Familienrechts," in ZVR., VIII, 1-27, 161-221, 384-405; in connection with his "Principien des europäischen Familienrechts," ibid., IX, 392-444; Friedrichs, "Familien-Stufen und Eheformen," ibid., X, 189-281; the first two chapters of Posada's Théories modernes (Paris, 1896); and the first three chapters of Botsford's Athenian Constitution (Boston, 1893), one of the ablest contributions to comparative institutions. This is supplemented by H. E. Seebohm's Structure of Greek Tribal Society (London and New York, 1895). For summaries of the results of investigations, from different points of view, Delbrück's "Das Mutterrecht bei den Indogermanen," in Preussische Jahrbücher, XCVII, 14-27 (Berlin, 1895), may be compared with Dargun's Mutterrecht und Vaterrecht (Leipzig, 1892), containing a criticism of the views of many recent writers.]

It is the primary purpose of this book to trace the development of the family and marriage in the "three homes" of the English race. An attempt is made to describe the mechanism provided by the state for the administration of matrimonial law; and to appreciate the importance of some of the many problems centering in the family as a social institution. Necessarily a theme so broad may here be treated only in outline. Yet in the outset it is the limitations of the subject which require to be most carefully noted. It is but a part of the wide field of family history which receives special attention. We are closely concerned with the forms of celebration and divorce as they existed among our Teutonic ancestors, and as they have since been molded by custom and legislation in England and the United States. Only in a secondary degree are we interested in the intricate law of the domestic relations. Except incidentally, we are not now called upon to consider the property rights of husband and wife, the laws of guardian and ward, or the rules of kinship and succession.

More pertinent is the general question of the genesis of human marriage and the human family.[1] It will be impossible, of course, to examine independently the many difficult problems which have arisen in this connection. Even the specialist may find it hard to trace a clear way through the bewildering maze of existing theory and sub-theory. It seems desirable, therefore, by way of introduction, to present as clearly and briefly as may be the more salient results of recent investigation. Marriage is a product of social experience. Hence to understand its modern aspects it is needful to appeal to the general sociological facts surrounding its origin and its early history among the races of mankind. It is necessary to get our bearings. At the dawn of history the Teutonic family was essentially monogamic, originating in a contractual relation. What, then, do we know as to the origin of the monogamic family and regarding the conditions under which marriage by contract arose? Part I will concern itself with the solution of this question.

The literature[2] of primitive marriage and the family is already formidable; and, however contradictory and discouraging, on first examination, its conclusions may appear, there can be little doubt that they demonstrate the possibilities of the comparative method[3] in the domain of social institutions. It is in this field, indeed, that evolutional science bids fair to achieve its most signal triumph. At last, in the laboratory of science, there is some prospect that man may come really to know himself. On the other hand, it is precisely in the study of primitive marriage that the "perils of historical narrative" are most clearly revealed.[4] Nowhere, perhaps, can there be found rasher inference[5] and more sweeping generalization from inadequate data. Too often economic and psychological laws have been slighted; and, in a field where their careful observance is so vitally important, the fundamental principles of organic evolution—such, for instance, as natural selection—have frequently been ignored.[6] A vast mass of interesting facts relating to man's social development, highly important for him to know, has been disclosed. But, with a few notable exceptions, the signal failure of investigators thus far has been the attempt to sustain theories of uniform social progress. The criticism, especially, to which the writings of Bachofen, Maine, Morgan, and McLennan have given rise has greatly weakened the faith of scholars in the doctrine of universal stages of evolution through which all mankind has run.[7]

I. STATEMENT OF THE THEORY

Students of comparative institutions have generally regarded the family as the unit or germ from which the higher forms of social organism have been evolved. A German scholar declares that among all the races of antiquity "the constitution of the family was the basis and prototype of the constitution of the state."[8] The same theory is clearly set forth and the process of political expansion carefully described by Plato and also by Aristotle,[9] who base it upon their own observation both among "Hellenes and barbarians," and each illustrates it by reference to the Cyclops of Homer.[10] It is not wholly improbable, as will presently appear, that the family in some form must be accepted as the initial society, possibly among all the races of mankind. At a very early ethnical period the family, so far as it implies great authority, perhaps even the despotic power of the house-father over his wife and children, may often have been "patriarchal." To admit this, however, is very different from accepting as the primordial cell of social development the strictly defined patriarchal family of Sir Henry Maine's Ancient Law. In this book, which made its appearance in 1861, we are told that 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."[11] The primitive family as thus conceived is substantially the Roman family, not in all respects as it actually appears in the historical period, but as it is thought that it must have been before the process of transformation and decay began. It is a much more extended group than the modern family, embracing under the headship of the eldest valid male parent all agnatic descendants and all persons united to it by adoption, as well as slaves, clients, and other dependents.[12] The power of the house-father is most despotic, though exercised during his entire lifetime over the unmarried daughters and over even the married sons and their wives and children. Thus originally, it is said, the Roman pater familias has power of life and death, vita necisque, over his children. He may sell them into slavery, and sons, even those who hold the highest offices of state, can originally own no property.[13] The patriarch is king and priest of the household. As a sort of "corporation sole," he is likewise its representative and administrator; for the property is regarded as a part of the family, and on the death of the house-father the family devolves upon the universal successor.[14] A characteristic feature of the patriarchal family is agnation, or the system of tracing kinship through males only.[15] Agnatic relationship "is in truth the connection between members of the family, conceived as it was in the most ancient times."[16] Its foundation is "not the marriage of father and mother, but the authority of the father.... 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." Indeed "it is obvious that the organization of primitive societies would have been confounded, if men had called themselves relatives of their mother's relatives."[17] The basis of the patriarchal family is the patria potestas, but in its "normal shape" it has not been and could not be "generally a durable institution."[18] Yet its former universality may be inferred from certain derivative institutions, such as the perpetual tutelage of women, the guardianship of minors, the relation of master and slave, and especially from agnation which is found "almost everywhere" and is "as it were a mould" retaining the imprint of the paternal powers after they have ceased to exist.[19] Applying this test chiefly, Maine finds evidence of the existence of the potestas among the Hebrews as well as all the peoples of the Aryan stock; and he believes that it would be hard to say "of what races of men it is not allowable to lay down that the society in which they are united was originally organized on the patriarchal model."[20]

The patriarchal family as thus constituted is the "type of an archaic society in all the modifications which it was capable of assuming." From it as in concentric circles have been successively evolved all the higher forms of political organization. Everywhere, as at Rome, "the aggregation of families forms the gens or house. The aggregation of houses makes the tribe. The aggregation of tribes constitutes the commonwealth."[21] The state is therefore the result of the expansion of its primordial cell;[22] and the genealogical organization of society precedes and overlaps the territorial. All these groups, lower and higher, regard themselves as united by the bond of kinship. But, as a matter of fact, the kinship is often assumed; and the heterogeneity of blood is explained as the result of the fiction of adoption by which relationship is artificially extended and strangers are admitted to the sacra. Without this fiction, says Maine, "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." Society could hardly have escaped from its "swaddling clothes."[23] Furthermore, a strong motive for the artificial extension of the family is derived from the worship of ancestors. The earnest desire of the ancients for male issue to perpetuate the family rites has tended to foster adoption, and it probably accounts for the levirate and other similar expedients to provide an heir.[24]

II. CRITICISM OF THE THEORY BY SPENCER AND McLENNAN

The patriarchal family of the Ancient Law, whose leading features have now been presented, reappears with slight modification in the later writings of Sir Henry Maine.[25] It has been widely accepted. Yet it was inevitable that a theory which on its face appears to neglect many of the most remarkable facts everywhere observable in the social life of primitive men[26] should arouse most serious doubt. Nor will it do, with Starcke,[27] to excuse the author on the ground that his conclusions are intended to be true only for the domain of the law-books, of comparative jurisprudence; for obviously his language will not bear that construction.

Herbert Spencer was the first writer to subject Maine's hypothesis to a luminous criticism.[28] First he points out that Maine has not been entirely guiltless of "the lofty contempt" entertained by civilized peoples for their barbarous neighbors, which he himself censures as a serious error. For he "has practically disregarded the great mass of the uncivilized" peoples, and "ignored the vast array of facts they present at variance with his theory." Nor, in favor of a primitive patriarchal state, is it safe to assume that "the implicit obedience of rude men to their parents is doubtless a primary fact." For, "though among lower races, sons, while young, may be subordinate, from lack of ability to resist; yet that they remain subordinate when they become men cannot be assumed as a uniform, and therefore as a primary, fact." This objection is sustained by reference to many savage and barbarous tribes among which parents exercise little or no control over the children. Again, it is by no means established that "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." On the contrary, "political co-operation arises from the conflicts of social groups with one another;"[29] and though it may be facilitated by a feeling of common descent, examples of political combination may be produced in which relationship is not considered. Furthermore, it is hard to conceive how so advanced a conception of government as is implied by the patria potestas could exist in the "infancy of society;" nor has it yet been proved that in the primitive state the individual is entirely lost in the family group, which holds all property in common. Instances of "personal monopoly" of property among low races are not wanting. Finally the assumption that in the primordial state women remained in perpetual tutelage is without foundation; how far it is from the truth will be made clear in future chapters.[30]

But the patriarchal theory has been vigorously attacked in its very strongholds, the laws of the Hebrews and the primitive customs of the Indo-Germanic peoples. The well-known polemic of the late J. F. McLennan is of special interest in this connection.[31] Among none of the Aryan races, the Romans only excepted, does he find the patria potestas or the strict rule of agnation; while among them all, he believes, abundant evidence of original promiscuity and of the maternal system of kinship is disclosed. Even the Hebrew Scriptures, where Maine perceives "the chief lineaments" of the patriarchal society,[32] so far from revealing the patria potestas and agnation, bear witness to "beena"[33] marriage and the recognition of kinship in the female line.[34] Sir Henry Maine in this connection refers incidentally to Sir Robert Filmer in whose Patriarchia the existence of the patria potestas among the ancient Hebrews is alleged. But, as McLennan justly observes, "to those who have studied the controversy between Locke and Filmer[35] it may seem wonderful that the truth of Filmer's main position could be thus lightly assumed by anyone, and especially by any lawyer, who had read Locke's masterly reply to the pleadings of his opponent."[36] The principal conclusions of McLennan are sustained in a striking way, for a sister-branch of the Semitic race, by the researches of Wilken and Robertson Smith into the marriage customs of early Arabia.[37] The ancient Hebrews did not have agnation; yet they "traced descent from the father for the purposes of what we may call rank, or a feeling of caste," and this was the source of paternal power.[38] The house-father exercised a high degree of authority over his wives and children, but he can scarcely be regarded as a patriarch in the strict sense of the term.[39]

III. THE THEORY IN THE LIGHT OF RECENT RESEARCH

Let us now see somewhat more in detail what light is thrown by recent investigation on the controversy between Maine and McLennan. Westermarck has taken great pains to enumerate the uncivilized peoples, chiefly non-Aryan, among whom descent and usually inheritance follow the paternal side;[40] and he finds that the number is "scarcely less" than the number of those among whom the female line is exclusively recognized. But in many of these cases it seems probable that the parental rather than the agnatic system prevails, though the male line may take precedence. In some instances rank or authority descends from father to son, while in other respects the female line predominates. Doubtless more frequently than is usually imagined a mixed system rather than a strictly paternal or a strictly maternal system would be found to exist.[41] As the result of his inquiry, Westermarck rejects the hypothesis that kinship through the mother is a primitive and universal stage, though he does not substitute the agnatic theory in its place. Starcke, on the other hand, after an extended examination of the customs of rude races, especially in America and Australia, suggests that the paternal as a general rule probably preceded the maternal system which arose only with the development of the gentile organization.[42] But Starcke's evidence can scarcely be accepted as convincing.

Similar difficulties are presented by the question of the prevalence of the so-called patriarchal power among non-Aryan races. Many apparent examples of despotic authority can be enumerated;[43] but it is often hard to determine whether, as in the cases of the Arabs and Hebrews, we have to do merely with a high degree of power on the part of the house-father or with a genuine patria potestas of the Roman type. Naturally, as Westermarck suggests, the father's authority among savages "depends exclusively, or chiefly, upon his superior strength;"[44] while anything like a patriarchal "system" can only arise later under the influence of ancestor-worship and more developed social and industrial conditions. Where authority depends solely or mainly upon brute force, it is evident that a very protracted patriarchal despotism over the sons is hard to conceive. Moreover, much error has doubtless arisen through falsely assuming that paternal authority and mother-right are incompatible; whereas they may well coexist, as will presently appear.

For the Indo-Germanic or Aryan peoples the investigations of Zimmer, Schrader, Delbrück, Kohler, and especially the researches of Leist, enable us to speak with a higher degree of confidence, though only for the period covered by positive linguistic and legal evidence. Bachofen, McLennan, and after them many other writers,[45] as will later be shown, have maintained that among all branches of the Aryan stock conclusive proofs exist of a former matriarchate, or, at any rate, of exclusive succession in the female line. But this view is decidedly rejected, if not entirely overthrown, by the philologists, and depends for its support on the presence in later institutions of alleged survivals. The judgment of Delbrück must probably be accepted as decisive for the present state of linguistic, if not of all scientific, inquiry. He declares that "no sure traces of a former maternal family among the Indo-Germanic peoples have been produced."[46] Similar conclusions are reached by Schrader, Max Müller, and Leist.[47] Also, among the institutional writers, Wake declares that "primitively among the peoples belonging to the wide-spread Aryan or Indo-European stock, while relationship was acknowledged through both parents, descent was traced preferably in the male line;"[48] and Bernhöft, constrained through the evidence presented by Schrader and Delbrück, believes that it is now placed "beyond question that the primitive Aryans did not live according to mother-right," but were united in family groups resembling the south Slavonian house communities.[49] On the other hand, Dargun, the foremost defender of the theory of mother-right, thinks that Bernhöft has "capitulated" too easily.[50] In his last monograph, entitled Mutterrecht und Vaterrecht, he maintains essentially the conclusion of his Mutterrecht und Raubehe, that before their separation the Aryan people had developed the system of kinship "through the mother as the only or chief basis of blood-relationship" and had "subordinated their entire family law to this principle."[51] But the later treatise contains a very important modification, or perhaps, more justly speaking, extension, of the author's theory. Setting aside as still an open question the general prevalence of promiscuity or sexual communism at the very dawn of distinctively human life, Dargun conceives that, before any system of kinship, maternal or agnatic, became recognized as a principle of customary family law, there must have existed a family, or rather parent-group (Elterngruppe), in which the father was protector and master of the mother and her children. This parent-group is the "hypothetical primordial cell of the family," brought together by sexual requirements and the need of sustenance and protection. It is "structureless, devoid of any firm bond, since it rests neither upon the principle of relationship nor that of legalized power." Its resemblance to the patriarchal family, though misleading, "is not without significance." For it "forms the necessary stage of an evolution which in analogous manner is also passed through by property. Inductively it is still demonstrable that individualism and atomism, not communism, as is usually assumed, are the starting point of evolution."[52] As a general rule, according to Dargun, the structureless parent-group is superseded by the maternal family, whose basis is mother-right, or the exclusive legal recognition of blood-relationship in the female line. Only in rare cases does the patriarchal agnatic family follow immediately upon the primitive group, without prior development of mother-right;[53] and hence, under exceptional conditions hindering the rise of the maternal system, do we find a form of the family in which, from a very early period, the house-father is the source of authority, practical or legalized.

Aside from his theory of evolution, in his principal thesis, which he fairly sustains by powerful argument, Dargun has rendered to science a distinct service. It is, he insists, highly necessary carefully to distinguish between power and relationship. "Mother-right" does not involve "maternal power" or the matriarchate, though sometimes actually united with it; nor does the headship of the house-father as provider, protector, and master imply agnation, the so-called "father-right." There is no contrast between power and relationship. "Mother-right in the sense of exclusive maternal kinship is compatible with a patriarchate just as exclusive." They may, and often do, coexist. It follows that the presence of the maternal system of kinship does not imply the existence of maternal power; just as it does not imply the non-existence of paternal authority. The distinction between power and kinship is justly declared to be an "indispensable key" for the solution of the greatest difficulties arising in this branch of sociological science, the disregard of which has often vitiated or confused the argument even of the foremost investigators.[54] With the aid of his key Dargun examines the linguistic evidence, which he finds favorable to the existence of mother-right among all the Aryan peoples after the separation, though united with a real supremacy of the house-father;[55] and he protests vigorously against the tendency, even on the part of Leist, to confound old Indic with old Aryan law; for the "Indians of the Vedas are in many respects more advanced than the Germans a thousand or the Slavs two thousand years later."[56] Valuable as the criticism of Dargun undoubtedly is, notably his distinction between power and relationship, it can scarcely be admitted that he has done more than reopen the question of the existence at any time of mother-right among the Aryans. His results are negative. He has not shifted the burden of proof; while his argument tends to confirm the view of the philologists that from the primitive stage the Aryan father was head of the household.[57]

But the patriarchal theory, strictly considered, fares little better than the maternal at the hands of recent investigators. Leist, who has been able with wonderful completeness to reconstruct the juridical life of the early household, though largely on the basis of old Indic sources, declares positively that "the Aryan people has not within itself a single element of patriarchalism."[58] This statement, as Bernhöft observes,[59] is perhaps too sweeping, even when tested by the results of Leist's own researches; but the patriarchal family of Sir Henry Maine does not appear. The evolution of juridical conceptions among the old Aryans, according to Leist, presents two general phases. First is the rita stage, or period of fixed, divinely appointed order, of natural law, corresponding to the Greek cosmos or phusis and the Latin ratum or ratio naturalis. In this "natural history" or pantheistic stage there is at first little idea of law as something to be separately contemplated. Under rita is comprehended the unchangeable order observable in the material world as well as in the physical and social life of man; but the universe and the creative energy, the All and Varuna, are identified or blended in thought.[60] Only slowly are these concepts differentiated and the immutable order of nature becomes looked upon as dhama, or a holy ordinance established by Varuna, who now appears as a protecting and creative spirit.

Dhama thus forms a means of transition to the second juridical phase, that of dharma, or divine law, corresponding to the Greek themis and the Latin fas.[61] In the dharma period, law is regarded as inspired by the gods, whose earthly agent, the priest or hero-king, is intrusted with its application; and in it the rules governing civil and public conduct, according to modern conceptions, are not distinguished from those relating to manners, morality, or religion. When history dawns, our early Aryan ancestors had already entered the dharma phase of evolution; and even now the Hindus have scarcely gained the third phase, prevailing in the civilized West, in which the element of "civil law" is separate from all other ingredients.[62]

Of the family relations of our primitive ancestors in the rita period we know little, except through inference or analogy. The so-called "natural forms" of marriage by purchase and capture were doubtless practiced, but probably not exclusively; and these customs were handed down to the second period, though they were modified to bring them into harmony with the higher ethical and social ideas which had then gained predominance.[63] Whether or not the absolute power of the father and the strict rule of agnation prevailed it would be as difficult to affirm as to deny.[64] In the dharma period the ancient rita conception of marriage as an ordinance of nature, whose real purpose is to provide posterity, is still retained; but it gains a social character.[65] The central principle of the Aryan household is the Hestia-Vesta cult, or the worship of the sacred hearth. To gain the protection of the ancestral gods the hearth-fire must be kept always burning; and the care of the family sacra is the special function of the house-father, who is lord and priest of the family. But the house-mother holds a worthy position in the domestic worship. From the first kindling of the hearth-fire at the nuptials, she appears as co-priestess and helper of her husband in the sacred rites. The whole life-partnership of the wedded pair is shaped and dominated by lofty religious motives. The Aryan housewife is not the chattel of her husband; she is a free woman and shares in his highest sacred functions. The primary purpose of the union is the birth of a legitimate son to perpetuate the paternal line and to foster the ancestral cult.[66] So paramount is this motive that, in case no son is born in wedlock, resort may be had to adoption, or to analogous expedients for the fictitious extension of fatherhood. For among the Aryans, as Maine suggests, the fiction of adoption is of the highest legal importance; and, indeed, very widely among the races of mankind it has served a useful purpose in social progress.[67] Here also the Aryan wife appears as co-priestess with her husband. Each is regarded as having a share in the begetting of the child, and they unite in giving the son in adoption to another household.[68] Accordingly the wife is not the mere chattel of her husband, who owns the children by virtue of his proprietorship in the mother.[69] The house-father appears in the sacred books as lord of the wife, who owes him reverence and obedience; yet she is not reduced to patriarchal slavery. With the husband she exercises joint control over the sons; and these are released entirely from parental authority when they marry and establish new households.[70] The male line takes legal precedence; but the maternal kindred are clearly recognized in a way wholly inconsistent with strict agnation.[71] According to the primitive Indic conception the wife is regarded as incapable of property. Neither the widow nor the daughters could inherit, the estate passing to the sons as in theory a means of providing for the sacra of the deceased house-father. Still the bride possessed her personal belongings—her couch, clothing, and ornaments; and from this germ gradually arose, beginning even in remote antiquity, her existing rights of property and inheritance.[72] In short, the old Aryan household reveals but the elements of agnation and the potestas as they appear in the Roman law.[73]

This conclusion is confirmed by the customs of the Aryan peoples after the separation. Among the Hellenes at the first dawn of history the family appears as a member of the gens, which is held together usually by the ties of blood-relationship. The house-father is lord or monarch of the family. But his authority is tempered in various ways. Originally, as among the primitive Aryans, he may have exercised the power of life and death over his children; but in no case could he "put a child to death without the consent of the collective ancestors," or near kindred.[74] By the Aryans the jus vitae necisque was never looked upon as an arbitrary right of destruction, but merely as a means of domestic discipline.[75] The Greek father might sell his minor sons and unmarried daughters; but "it appears that, even here, merely the labor of the youth and not the person itself was disposed of by sale," and the custom was controlled by the usage of the gens.[76] The wife, as among the Hindus, holds a dignified position in the household. She is her husband's partner in the domestic economy and the sacred rites. Equally with him she is "the cause of the son's existence," and in consequence exercises over him conjointly with the father the powers of sale and life and death.[77] Thus Hellenic custom preserves the essential element of the Aryan paternal authority, which signifies a protecting, not an arbitrary or ruthlessly destructive, power. Among the historic Greeks the agnatic principle finds expression especially in the right of guardianship, which is transmitted in the paternal line. Such is the judgment of Leist, whose masterly account of the development of the Aryan agnatic conception proves that here as elsewhere the Roman and the Greek stood upon common ground.[78] The point of divergence is the lifelong continuance of the Roman potestas; whereas in Hellas the son was emancipated at maturity.[79]

Examination of the customs of the Celts,[80] the Slavonians,[81] and ancient Germans[82] leads to a like result. Accordingly we are forced to admit the accuracy of Gaius's conclusion. Writing in the time of the Antonines, he declares his belief that the patria potestas is peculiarly a Roman institution. Only among the Asiatic Galatæ had he observed a similar authority exercised by the father over his children.[83] Instead of existing "almost everywhere," often preserving as in a mold the imprint of the paternal power which it has outlived and upon which it is thought always to depend, among Aryan peoples agnation is found together with the potestas only in one instance, that of the Roman law; and even in this case it was virtually the first to expire.[84] For, as is well known to the student of Roman jurisprudence, strict agnation, as determining right of succession, disappeared under the influence of the edict and imperial statutes long before the last vestige of the real patria potestas was swept away by the legislation of Justinian.[85]

Furthermore, in addition to the historical difficulty, there is another strong reason for doubting the dependence of agnation upon patria potestas: the inconsistency of the latter in its effects upon kinship. If the descendants of married women are excluded from relationship, solely on the ground that they belong to another potestas, why, for the same reason, should not the children of men, say of brothers sui juris,[86] be likewise mutually excluded? Plainly some more satisfactory explanation of this remarkable discrimination between the sexes must exist. Such an explanation McLennan finds in exogamy, or the custom which forbids marriage between persons of the same group of acknowledged kindred.[87] It seems probable that in early times the patrician family was coextensive with the gens. Agnatio and gentilitas were equivalent expressions.[88] During the historical period, at any rate, gentilitas is traced through the male line; and it is not impossible that originally inter-marriage was forbidden between those bearing the same gentile name.[89] In that case, agnation appears as the natural result of the gentile rule of exogamy, retained, after the weakening of the gens, for the regulation of succession within the family. Exogamy, however, does not necessarily imply the patria potestas, but is found more frequently perhaps with the maternal than with the paternal system of kinship.[90] In fact, for the Romans and kindred Italic tribes, considerable evidence has been collected by various writers pointing, as they believe, to an early transition from the maternal to the cognatic or the agnatic system.[91] While this conclusion may be rejected, it must nevertheless be admitted that criticism of the patriarchal theory has been very successful in its general results. It appears to have established beyond question the complex and highly artificial character of the Roman family.[92] So far from being the type of early social organization, it is seen to be relatively modern and ill fitted to the condition of primitive men.

In the meantime, the patriarchal theory has had to reckon with a totally different view of the genesis and development of social institutions. To this view let us now turn.