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A HISTORY OF MATRIMONIAL INSTITUTIONS
CHIEFLY IN ENGLAND AND THE UNITED STATES WITH AN INTRODUCTORY ANALYSIS OF THE LITERATURE AND THE THEORIES OF PRIMITIVE MARRIAGE AND THE FAMILY
BY GEORGE ELLIOTT HOWARD PH.D.
PROFESSORIAL LECTURER IN THE UNIVERSITY OF CHICAGO AUTHOR OF "LOCAL CONSTITUTIONAL HISTORY OF THE UNITED STATES"
VOLUME ONE
CHICAGO THE UNIVERSITY OF CHICAGO PRESS CALLAGHAN & COMPANY
LONDON T. FISHER UNWIN, PATERNOSTER SQUARE 1904
COPYRIGHT 1904 THE UNIVERSITY OF CHICAGO
Entered at Stationers' Hall
MAY, 1904
TO
Alice Frost Howard
HER HUSBAND DEDICATES THIS BOOK IN GRATEFUL RECOGNITION OF HER AID IN MAKING IT
Preface
It is an encouraging sign of advancing culture that history is gaining a deeper and broader meaning. We are really becoming interested, not merely in our political, but also in our entire biological, psychological, and social evolution. Although such phrase-making is nearly always misleading, there would perhaps be more truth in saying that "history is past sociology and sociology present history" than in Freeman's well-known epigram. In particular, the human family, with all that the word connotes, is commanding greater attention. Yet there is urgent need that its rise and social function should have far more earnest study than they now receive. The family and its cognate institutions ought to enter more fully into popular thought; and they should have much larger relative space in the educational program. From the home circle to the university seminar they are worthy to become a vital part of systematic social training. In the hope of aiding somewhat in winning for them due scientific recognition, this book is written. It seems not impossible that a sustained history of the matrimonial institutions of the English race in its "three homes" may prove a positive advantage, especially in gathering the materials and planning the work for more detailed investigations. Moreover, a thorough understanding of the social evolution of any people must rest upon the broader experience of mankind. Accordingly, in Part I the attempt is made to present a comprehensive and systematic analysis of the literature and the theories of primitive matrimonial institutions.
Preliminary reference to another portion of the book may perhaps be permitted. The anxious attention of the legal and social reformer is being especially directed to the character of our state legislation regarding marriage and divorce. To him, therefore, it is hoped, the last three chapters may prove helpful. Summaries of the statutes as they stood at particular dates have indeed appeared. The digest contained in the government Report is of great value for the time of its compilation; but no attempt seems ever to have been made to provide a systematic historical record. In these chapters--the result of several years' labor--the laws of all the states and territories enacted since the Revolution have been analyzed with some regard for details. No pains have been spared to gain accuracy; yet it would be rash to expect that the discussion is entirely free from error or oversight.
During the years devoted to this investigation I have profited by the generous assistance of many friends. They have aided me through references, information, copying, verifying, and in other ways. To all these I desire to convey my grateful thanks. In a few instances it is fitting that individual acknowledgment should be made. To Professor William Henry Hudson, of London, I am indebted for the examination of several rare books in the library of the British Museum. Bibliographical help has also been given by Professor Charles Richmond Henderson, of the University of Chicago. Special researches on my behalf have been conducted by Mr. Royall C. Victor and by Miss Lucile Eaves, head resident of the South Park Settlement, San Francisco. I have had the advantage of the expert aid of Mr. David M. Matteson in examining the manuscript records of the colonial and provincial courts of Suffolk and Middlesex counties, Massachusetts. To Professor Nathan Abbott, of Stanford University, Mr. James H. Deering, of the San Francisco Law Library, and Rev. Samuel W. Dike, secretary of the National League for the Protection of the Family, I am under obligations for information and suggestions. Special thanks are due to Professor Charles Gross, of Harvard, for encouragement in the work and various kind offices; as also to Mr. W. C. Lane and Mr. T. J. Kiernan, of the Harvard Library, for granting the most liberal use of the materials in their charge.
Finally I can but poorly express the gratitude which I owe to my wife, whose patient hand, faithful criticism, and wise counsel have never failed.
CHICAGO, March 19, 1904.
ANALYTICAL TABLE OF CONTENTS
VOLUME ONE
Part I
ANALYSIS OF THE LITERATURE AND THE THEORIES OF PRIMITIVE MATRIMONIAL INSTITUTIONS
PAGES
I. THE PATRIARCHAL THEORY 3-32
I. Statement of the Theory 9-13
II. Criticism of the Theory by Spencer and McLennan 14-17
III. The Theory in the Light of Recent Research 18-32
II. THEORY OF THE HORDE AND MOTHER-RIGHT 33-89
I. Bachofen and His Disciples 39-65
II. Morgan's Constructive Theory 65-76
III. McLennan's Constructive Theory 77-89
III. THEORY OF THE ORIGINAL PAIRING OR MONOGAMOUS FAMILY 89-151
I. The Problem of Promiscuity 90-110
II. The Problem of Mother-Right 110-117
III. The Problem of Exogamy 117-132
IV. The Problem of the Successive Forms of the Family 132-151
IV. RISE OF THE MARRIAGE CONTRACT 152-223
I. Wife-Capture and the Symbol of Rape 156-179
II. Wife-Purchase and Its Survival in the Marriage Ceremony 179-201
III. The Antiquity of Self-Betrothal or Free Marriage 201-210
IV. Primitive Free Marriage Surviving with Purchase, and the Decay of the Purchase-Contract 210-223
V. EARLY HISTORY OF DIVORCE 224-250
I. The Right of Divorce 224-240
II. The Form of Divorce 240-241
III. The Legal Effects of Divorce 241-247
IV. Frequency of Divorce 247-250
VI. OLD ENGLISH WIFE-PURCHASE YIELDS TO FREE MARRIAGE 253-286
I. The Primitive Real Contract of Sale and Its Modifications 258-276
II. Rise of Free Marriage: Self-Beweddung and Self-Gifta 276-286
CHAPTER VII. RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH ACCEPTS THE LAY CONTRACT AND CEREMONIAL 287-320
I. The Primitive Christian Benediction, the Bride-Mass, and the Celebration ad Ostium Ecclesiae 291-308
II. The Priest Supersedes the Chosen Guardian, and Sponsalia per Verba de Praesenti Are Valid 308-320
CHAPTER VIII. RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH DEVELOPS AND ADMINISTERS MATRIMONIAL LAW 321-363
I. The Early Christian Doctrine and the Rise of the Canonical Theory 324-340
II. Clandestine Marriages the Fruit of the Canonical Theory 340-349
III. The Evils of the Spiritual Jurisdiction 351-359
IV. Publicity Sought through Banns and Registration 359-363
IX. THE PROTESTANT CONCEPTION OF MARRIAGE 364-403
I. As to the Form of Marriage 370-386
II. As to the Nature of Marriage 386-399
III. Child-Marriages in the Age of Elizabeth 399-403
X. RISE OF CIVIL MARRIAGE 404-473
I. Cromwell's Civil Marriage Act, 1653 408-435
II. Fleet Marriages and the Hardwicke Act, 1753 435-460
III. The Present English Law 460-473
VOLUME TWO
XI. HISTORY OF SEPARATION AND DIVORCE UNDER ENGLISH AND ECCLESIASTICAL LAW 3-117
I. The Early Christian Doctrine and the Theory of the Canon Law 11-60
a) Historical Elements of the Christian Teaching 11-23 b) Views of the Early Fathers 23-28 c) The Legislation of the Christian Emperors 28-33 d) The Compromise with German Custom 33-46 e) Final Settlement of the Christian Doctrine in the Canon Law 47-60
II. The Protestant Doctrine of Divorce 60-85
a) Opinions of Luther and the Continental Reformers 60-71 b) Opinions of the English Reformers 71-85
III. Law and Theory during Three Centuries 85-117
a) The Views of Milton 85-92 b) Void and Voidable Contracts 92-102 c) Parliamentary Divorce 102-109 d) The Present English Law 109-117
XII. OBLIGATORY CIVIL MARRIAGE IN THE NEW ENGLAND COLONIES 121-226
I. The Magistrate Supersedes the Priest at the Nuptials 125-143
II. Banns, Consent, and Registration 143-151
III. Courtship, Proposals, and Government of Single Persons 152-169
IV. Pre-contracts, Bundling, and Sexual Immorality 169-200
V. Breach of Promise and Marriage Portions 200-209
VI. Self-Gifta, Clandestine Contracts, and Forbidden Degrees 209-215
VII. Slave-Marriages 215-226
XIII. ECCLESIASTICAL RITES AND THE RISE OF CIVIL MARRIAGE IN THE SOUTHERN COLONIES 227-263
I. The Religious Ceremony and Lay Administration in Virginia 228-239
II. Optional Civil Marriage and the Rise of Obligatory Religious Celebration in Maryland 239-247
III. The Struggle for Civil Marriage and Free Religious Celebration in North Carolina 247-259
IV. Episcopal Rites by Law and Free Civil or Religious Celebration by Custom in South Carolina and Georgia 260-263
XIV. OPTIONAL CIVIL OR ECCLESIASTICAL MARRIAGE IN THE MIDDLE COLONIES 264-327
I. New York 266-308
a) Law and Custom in New Netherland 267-284 b) Law and Custom under the Duke of York 284-296 c) Law and Custom in the Royal Province 296-308
II. New Jersey, Pennsylvania, and Delaware 308-327
a) Law and Custom in New Jersey 308-315 b) Law and Custom in Pennsylvania and Delaware 315-327
XV. DIVORCE IN THE AMERICAN COLONIES 328-387
I. In New England 330-366
a) Massachusetts 330-348 b) New Hampshire, Plymouth, and New Haven 348-353 c) Connecticut 353-360 d) Rhode Island 360-366
II. English Divorce Laws in Abeyance in the Southern Colonies 366-376
Arbitration and Divorce in the Middle Colonies 376-387
XVI. A CENTURY AND A QUARTER OF MARRIAGE LEGISLATION IN THE UNITED STATES, 1776-1903 388-497
I. The New England States 388-408
a) Solemnization 389-395 b) Forbidden Degrees: Void and Voidable Marriages 395-401 c) Certificate and Record 401-408
II. The Southern and Southwestern States 408-452
a) Solemnization 409-427 b) Forbidden Degrees: Void and Voidable Marriages 427-441 c) Certificate and Record 441-452
III. The Middle and the Western States 452-497
a) Solemnization 452-470 b) Forbidden Degrees: Void and Voidable Marriages 470-481 c) Certificate and Record 481-497
VOLUME THREE
XVII. A CENTURY AND A QUARTER OF DIVORCE LEGISLATION IN THE UNITED STATES 3-160
I. The New England States 3-30
a) Jurisdiction: Causes and Kinds of Divorce 4-18 b) Remarriage, Residence, Notice, and Miscellaneous Provisions 18-28 c) Alimony, Property, and Custody of Children 28-30
II. The Southern and Southwestern States 31-95
a) Legislative Divorce 31-50 b) Judicial Divorce: Jurisdiction, Kinds, and Causes 50-79 c) Remarriage, Residence, Notice, and Miscellaneous Provisions 79-90 d) Alimony, Property, and Custody of Children 90-95
III. The Middle and the Western States 96-160
a) Legislative Divorce 96-101 b) Judicial Divorce: Jurisdiction, Kinds, and Causes 101-144 c) Remarriage, Residence, Notice, and Miscellaneous Provisions 145-160
XVIII. PROBLEMS OF MARRIAGE AND THE FAMILY 161-259
I. The Function of Legislation 167-223
a) The Statutes and the Common-Law Marriage 170-185 b) Resulting Character of Matrimonial Legislation 185-203 c) Resulting Character of Divorce Legislation 203-223
II. The Function of Education 223-259
BIBLIOGRAPHICAL INDEX 263-402
I. Early History of Matrimonial Institutions 264-291
II. Matrimonial Institutions in England and under Germanic and Canon Law 291-339
III. Matrimonial Institutions in the United States 339-355
a) Manuscripts 339-340 b) Books and Articles 340-355
IV. Problems of Marriage and the Family 355-396
V. Session Laws and Collected Statutes Used in Chapters XVI-XVIII 396-402
CASE INDEX 405-411
SUBJECT INDEX 413-449
Part I
ANALYSIS OF THE LITERATURE AND THE THEORIES OF PRIMITIVE MATRIMONIAL INSTITUTIONS
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.
[1] "The expression 'human marriage' will probably be regarded by most people as an improper tautology. But, as we shall see, marriage, in the natural-history sense of the term, does not belong exclusively to our own species. No more fundamental difference between man and other animals should be implied in sociological than in biological and psychological terminology. Arbitrary classifications do science much injury."--WESTERMARCK, History of Human Marriage, 6. In like spirit, HELLWALD entitles his book Die menschliche Familie.
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]
[2] A brief and clear account of some of the more important works is given by BERNHÖFT, "Zur Geschichte des europäischen Familienrechts," ZVR., VIII, 4 ff., 384 ff. Compare the criticisms of Spencer, Starcke, and Westermarck contained throughout their respective treatises.
[3] For a proof of the efficiency with which the "statistical method" may be applied to anthropological and sociological questions, see the paper of DR. TYLOR, "On a Method of Investigating the Development of Institutions, Applied to Laws of Marriage and Descent," Journal of the Anthropolog. Institute, Feb., 1889, 245-69. Cf. WESTERMARCK, Human Marriage, 1-7; STARCKE, Primitive Family, 1-16; BERNHÖFT, op. cit., 1-4.
[4] See the suggestive paper of WINSOR, "The Perils of Historical Narrative," Atlantic Monthly (Sept., 1890), LXVI, 289-97.
[5] BERNHÖFT, op. cit., 1-4, has noted the danger of inference, especially from written laws, where there has been a mixture of races and institutions: "Denn die Rechtsinstitute sind eben nicht aus einem einheitlichen Prinzip erwachsen, sondern aus einem Kompromiss verschiedener Prinzipien entstanden, welche sich gegenseitig einschränken und durchbrechen."
[6] It is a merit of Westermarck's book that he has "put particular stress upon psychological causes which have often been deplorably overlooked."--Op. cit., 5. Cf. also STARCKE, op. cit., 4.
[7] "Yet nothing has been more fatal to the Science of Society than the habit of inferring, without sufficient reasons, from the prevalence of a custom or institution among some savage peoples, that this custom, this institution, is a relic of a stage of development that the whole human race once went through."--WESTERMARCK, op. cit., 2. Cf. POST, Studien zur Entwicklungsgeschichte des Familienrechts, 1-3, 58.
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]
[8] MARQUARDT, Das Privatleben der Römer, I, 1. The theory is also held by BLUNTSCHLI, Theory of the State, 182-89; SCHRADER, Sprachvergleichung und Urgeschichte, 391-95; LEIST, Alt-arisches Jus Gentium, 113; MÜLLER, Handbuch der klass. Alterthumswissenschaft, IV, 18-20; GILBERT, Handbuch der griech. Staatsalterthümer, II, 302; MAINE, Village Communities, 15 ff.; Ancient Law, 118 ff.; Early Law and Custom, chap. iii; FUSTEL DE COULANGES, Ancient City, 111 ff.; GROTE, History of Greece, I, 561; THÜMSER, Die griech. Staatsalterthümer, 28 ff.
[9] PLATO, Laws, Book III, 680, 681: JOWETT, Dialogues, IV, 209; ARISTOTLE, Politics, Book I, 2 ff.: JOWETT, I, 2 ff. These are followed by CICERO, De Officiis, I, 17.
[10] "They (the Cyclops) have neither assemblies for consultation nor themistes, but everyone exercises jurisdiction over his wives and his children, and they pay no regard to one another."--Odyssey, Book IX, 106 ff., as rendered by MAINE, Ancient Law, 120. Cf. Odyssey, Book VI, 5 ff.; BRYANT'S Trans., I, 144, 215, 216. On the themistes, as inspired commands of the hero-king, handed down to him from Zeus by Themis, see MAINE, chap. i; and on the import of the passage in Homer compare ibid., 120, with FREEMAN, Comparative Politics, 379 n. 20, and BOTSFORD, Athenian Constitution, 3, 4.
[11] Ancient Law, 118.
[12] Clients, servants, and even those admitted to the hearth as guests, by observance of the proper rites, were regarded as members of the family group and sharers in the sacra. HEARN, Aryan Household, 73, 107 f.; FUSTEL DE COULANGES, Ancient City, 150; MAINE, op. cit., 156 ff., 185 ff. (sacra).
[13] For the Roman patria potestas see POSTE, Gaius, 61 ff.; LEIST, Graeco-italische Rechtsgeschichte, 57-102; SOHM, Institutes, 120 ff., 356 ff., 385-95; BERNHÖFT, Römische Königszeit, 175 ff.; PUCHTA, Institutionen, II, 384 ff.; MOREY, Outlines of Roman Law, 23, 24; SCHEURL, Institutionen, 271, 272; KUNTZE, Excurse, 570 ff.; MAINE, Ancient Law, 123 ff., 130 ff., 227, 228; HADLEY, Roman Law, 119 ff.; CLARK, Early Roman Law, 25; MUIRHEAD, _Hist. Int. to the Private Law of Rome_, 27 ff., 118, 222; LANGE, Römische Alterthümer, I, 112 ff.; GRUPEN, _Uxore romana_, 19 ff., 37 ff.; BADER, La femme romaine, 75 ff.; TARDIEU, Puissance paternelle, 5 ff.; BOURDIN, Condition de la mère, 9 ff. On the power of the father to expose female infants during the early empire see CAPES, Age of the Antonines, 19 f.
[14] MAINE, Ancient Law, 122, and chap. vi.
[15] On the Roman agnation see POSTE, Gaius, 113 ff.; LEIST, Graeco-italische Rechtsgeschichte, 64 ff.; SOHM, Institutes, 124, 355 ff.; PUCHTA, Institutionen, II, 17 ff.; MOYLE, Institutiones, I, 155, 156; MOREY, op. cit., 6, 34; KUNTZE, Excurse, 435-37 (Agnationsverband); LANGE, _Römische Alterthümer_, I, 211 ff.; MUIRHEAD, _Hist. Int. to the Private Law of Rome_, 43 ff., 122 ff.; HADLEY, _Roman Law_, 130 ff.; MAINE, op. cit., 56, 141 ff.
[16] MAINE, op. cit., 142.
[17] Ibid., 144.
[18] Ibid., 141.
[19] Ibid., 141 ff., 145 ff.
[20] Ibid., 118 ff., passim.
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]
[21] Ibid., 123, 124, 128. See the table of comparative groups in SCHRADER, Sprachvergleichung und Urgeschichte, 394. For the Ionic groups cf. SCHÖMANN, Antiquities, 317, 364; Athenian Constitution, 3-10; WACHSMUTH, Hist. Ant., I, 342 f.; MÜLLER, Handbuch, IV, 17-22; GROTE, Hist. of Greece, III, 52, 53. In general, cf. FUSTEL DE COULANGES, Ancient City, 141 ff.; HEARN, Aryan Household, 63 ff., 112 ff., passim; LEIST, Graeco-italische Rechtsgeschichte and Alt-arisches Jus Gentium.
[22] For FREEMAN'S well-known theory of political expansion see Comparative Politics, chap. iii.
[23] MAINE, Ancient Law, 125 ff., 26. On the new mode of adoption in India see MAYNE, Hindu Law and Usage, 88 ff.; LYALL, Asiatic Studies, chap. vii; Fortnightly Review, Jan., 1877; JOLLY, Hindu Law of Partition, 144-66. On the formation of non-genealogical clans see HEARN, Aryan Household, 296 ff. Cf. POST'S discussion of "Künstliche Verwandtschaft" in Studien zur Entwicklungsgeschichte des Familienrechts, 25-42: KOHLER, ZVR., V, 415-40.
[24] MAINE, Early Law and Custom, chaps. iii, iv, viii. For ancestor-worship see especially FUSTEL DE COULANGES, Ancient City, 9-52; HEARN, Aryan Household, 15 ff., 45, 46, 59, 60; TAYLOR, Primitive Culture, II ("Animism"); MAYNE, Hindu Law and Usage, 55, 438; LYALL, Asiatic Studies, chap. ii; DURUY, Hist. of Rome, I, 206; ZIMMER, Altindisches Leben, 413; BOTSFORD, Athenian Constitution, 24, 25, passim, who holds against SCHRADER, Sprachvergleichung (2d ed.), 613-15, that ancestor-worship arose before the separation of the Aryan races. FUSTEL DE COULANGES, Ancient City, 49-51, and HEARN regard the religious tie as of more importance than the blood-bond in the formation of the gentile groups, Aryan Household, 66; and LEIST, Graeco-italische Rechtsgeschichte, 7 ff., 11 ff., also makes the formation of the first recognized groups of relationship depend on the sacra. Cf. KOHLER, in ZVR., VI, 409-17, for animism; and for additional references, a subsequent note.
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.
[25] Early Hist. of Institutions, 64 ff., 115 ff., 217 ff., 306-41; Village Communities, 15, 16, passim; Early Law and Custom, chaps. iii, iv, and especially chaps. vii, viii, where adverse criticism is considered. Cf. MCLENNAN, Patriarchal Theory, 1-23, for a collation of the more important passages of Maine's writings.
[26] "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 civilization less advanced than their own, the records which particular races have preserved concerning their primitive history, and ancient law." Of these three sources of information, Maine regards ancient law as the best. He fails entirely to appreciate the true importance of the first source, from which, obviously, are derived most of the data of recent ethnical, anthropological, and sociological investigation, including much that Maine himself has presented. Cf. the criticisms by SPENCER, Principles of Sociology, I, 713, 714; LUBBOCK, Origin of Civilization, 6 ff.; MCLENNAN, Patriarchal Theory, 29, 30.
[27] Primitive Family, 94, 95.
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]
[28] Principles of Sociology, I, 713-37.
[29] Ibid., 716, 717, 540-53.
[30] See below, chap. iv. MR. SPENCER also points out that Maine does not take into account "stages in human progress earlier than the pastoral or agricultural."--Op. cit., I, 724 ff.
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]
[31] The Patriarchal Theory, edited and completed by DONALD MCLENNAN (London, 1885).
[32] Ancient Law, 118-20, 123.
[33] The marriage of Jacob with Laban's daughters is the case in point. In "beena" marriage--the name given to the institution in Ceylon--"the young husband leaves the family of his birth and passes into the family of his wife, and to that he belongs as long as the marriage subsists. The children born to him belong, not to him, but to the family of their mother. Living with, he works for, the family of his wife; and he commonly gains his footing in it by service. His marriage involves usually a change of village; nearly always (where the tribal system is in force) a change of tribe--so that, as used to happen in New Zealand, he may be bound even to take part in war against those of his father's house; but always a change of family. The man leaves father and mother as completely as, with the patriarchal family prevailing, a bride would do; and he leaves them to live with his wife and her family. That this accords with the passage in Genesis will not be disputed." Patriarchal Theory, 42, 43. Nevertheless, in this case McLennan is certainly mistaken. We have here to do with that form of wife-purchase called "marriage by service;" see LICHTSCHEIN, Die Ehe, 10, 11; the argument of WAKE, Marriage and Kinship, 239-44; and FRIEDRICHS, Familienstufen und Eheformen, ZVR., X, 207, 208. "Beena" marriage existed, however, among other Semitic peoples and possibly also among the Hebrews: SMITH, Kinship and Marriage, 108, 175-78, 146. It is found also in Africa and in many other places: WAKE, op. cit., 149, 299-301; MCLENNAN, op. cit., 43; WESTERMARCK, Human Marriage, 109, 389-90; TYLOR, On a Method of Investigating Institutions, 246 ff.; STARCKE, op. cit., 78; HELLWALD, Die mensch. Familie, 255, 266.
[34] On the Hebrew family see Patriarchal Theory, 35-50, 132, 133, 243-47, 273, 274 note, 289, 306, 307, 315, passim.
[35] FILMER'S Patriarchia, or the Natural Power of Kings appeared in 1680; LOCKE'S Two Treatises on Government, in 1690. Both works are reprinted in the ninth number of MORLEY'S Universal Library.
[36] See Patriarchal Theory, 36 ff., 243 ff., 273 note, where a summary of Locke's argument, with additional evidence against the existence of agnation and patria potestas and in favor of an original maternal system among the Hebrews, will be found.
[37] ROBERTSON SMITH, Kinship and Marriage; WILKEN, Das Matriarchat bei den alten Arabern, a work suggested by SMITH'S "Animal Worship and Animal Tribes," Journal of Philology, IX, 75-100. These writers have found among these Semitic tribes the system of kinship through the mother in actual use, with traces of polyandry, exogamy, and the totem gens; and Wilken believes that he finds evidences of early promiscuity. See especially KOHLER, Ueber das vorislamitische Recht der Araber, ZVR., VIII, 238-61; and FRIEDRICHS, Das Eherecht des Islam, ibid., VII, 240-84, especially 255 ff., who shows that the Mohammedan house-father exercises great authority over his wife, yet she has her own property and receives a dower. At present, relationship in Arabia is generally counted in the male line; and therefore, WESTERMARCK, Human Marriage, 102, note 4, regards the conclusion of Smith that originally the system of female kinship exclusively prevailed as "a mere hypothesis."
[38] WAKE, Marriage and Kinship, 244.
[39] According to EWALD the ancient Hebrew father might "sell his child to relieve his own distress, or offer it to a creditor as a pledge."--The Antiquities of Israel (London, 1876), 190; WESTERMARCK, op. cit., 228; and the Levitical law prescribes death as the penalty for striking a parent (Leviticus 20:9; Exodus 21:15, 17); but the penalty could only be administered through appeal to the whole community, WESTERMARCK, op. cit., 228. Cf. MICHAELIS, Commentaries on the Laws of Moses, I, 444, who shows that the mother, as well as the father, might sometimes choose wives for the sons; while McLennan and Locke prove that the position of the mother in Israel was higher than is consistent with Roman patriarchalism.
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.
[40] Human Marriage, 97-104, notes. Cf. FRIEDRICHS, "Ueber den Ursprung des Matriarchats," ZVR., VIII, 371-73; KOHLER, ibid., VI, 403 (Korea); VII, 373 (Papuas).
[41] Compare WAKE, Marriage and Kinship, 267 ff., 362 ff., 382, 396 ff.; especially FRIEDRICHS, "Familienstufen und Eheformen," ZVR., X, 209-12; and DARGUN, Mutterrecht und Vaterrecht, 3, 28, 118, who believes the so-called "mixed systems" are merely a consistent union of two entirely different principles--the principle of relationship with the principle of power or protection.
[42] STARCKE, op. cit., 26, 27 (Australia), 30 (America), 58 ff., 101 ff. Compare the criticism of HELLWALD, Die mensch. Familie, 456 ff.; and on the development of the patriarchal family, see LIPPERT, Kulturgeschichte, II, 505-54.
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.
[43] WESTERMARCK, op. cit., 224-35, gives an enumeration. Noteworthy examples of patriarchal power are afforded by the ancient Peruvians and Mexicans, and by the modern Chinese and Japanese. On the Nahua and Maya natives see BANCROFT, Native Races, II, 247-53, 663-68. Cf. KOHLER, "Das Recht der Azteken," ZVR., XI, 54, 55; also ibid., VI, 374 (Chinese), 333, 334; VII, 373 (Papuas).
[44] Op. cit., 225.
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.
[45] BACHOFEN, Das Mutterrecht; MCLENNAN, Studies, I, 121 ff., 195 ff.; idem, Patriarchal Theory, 50 ff., 71 ff., 96 ff., 120 ff., 250 ff.; DARGUN, Mutterrecht und Raubehe, 8, 13, passim; GIRAUD-TEULON, Les orignes du mariage, 130 ff., 286 ff., 329 ff.; idem, La mère chez certaines peuples de l'antiquité; LIPPERT, Geschichte der Familie, 4 ff.; LUBBOCK, Origin of Civilization, 153, 154. KOHLER, "Indisches Ehe- und Familienrecht," ZVR., III, 393 ff., holds that the primitive Aryans must necessarily have recognized relationship through the mother. For the literature of this subject see the next chapter.
[46] DELBRÜCK, "Das Mutterrecht bei den Indogermanen," Preussiche Jahrbücher, XCVI, 14-27, a clear summary of the results of recent research. Cf. his Die Indogermanischen Verwandtschaftsnamen (Leipzig, 1889). According to HELLWALD, Die mensch. Familie, 453-80, especially 459, 460, patriarchalism was fully established at the earliest dawn of Indic history; but there are nevertheless traces of earlier mother-right.
[47] SCHRADER, Sprachvergleichung und Urgeschichte (2d ed.), 536 ff.; JEVONS'S Translation, 369 ff.; LEIST, Alt-arisches Jus Gentium, 51-58. MAX MÜLLER declares that "whether in unknown times the Aryas ever passed through that metrocratic stage in which the children and all family property belong to the mother, and fathers have no recognized position whatever in the family, we can neither assert nor deny."--Biographies of Words, xvii.
[48] WAKE, Marriage and Kinship, 359 ff., especially 382, where a thorough and detailed criticism of McLennan's theory is given.
[49] BERNHÖFT, "Die Principien des eur. Familienrechts," ZVR., IX, 418, 419, 437 ff. See also his Römische Königszeit, 202 ff.; and his articles in ZVR., VIII, 11; IV., 227 ff.; and compare DARGUN, Mutterrecht und Vaterrecht, 91-94, 108. STARCKE, op. cit., 101-18, also gives a searching examination of the theory of McLennan and the earlier views of Dargun, rejecting their conclusions.
[50] Mutterrecht und Vaterrecht, 108.
[51] DARGUN, Mutterrecht und Raubehe, 13. Cf. the Mutterrecht und Vaterrecht, 95, 117 ff., passim.
[52] DARGUN, Mutterrecht und Vaterrecht, 41, 42, 4 ff., 28, 29-42, 118, passim.
[53] DARGUN, op. cit., 41.
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]
[54] Ibid., 3 ff., 28, 36, 86 ff., 155, passim. As remarked in the text, the whole work is concerned with the thesis in question. The distinction is also made in the Mutterrecht und Raubehe, 18.
[55] See Mutterrecht und Vaterrecht, 86-116, for his criticism of the linguistic argument.
[56] Ibid., 91, 92. Cf. a similar protest against conclusions as to the primitive Aryans derived from Greek and Roman sources, ibid., 116; and Mutterrecht und Raubehe, 14.
[57] Mutterrecht und Vaterrecht, 69, denies that women have ever attained political headship; but (113, 114) declares, though the researches of the philologists make it probable that the Aryans lived under the rule of house-fathers, that neither this fact nor any other circumstance tells against the view that mother-right coexisted from antiquity; while, in a still more remote period, this may have implied matriarchal power in the family; but of such a matriarchate no proofs are presented.
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.
[58] LEIST, Graeco-italische Rechtsgeschichte, 64. This work is continued in the Alt-arisches Jus Gentium, the two books really constituting a single treatise. Compare the more conservative view of JOLLY, Ueber die rechtliche Stellung der Frau, 4 ff., 20-22, and Hindu Law of Partition, 76 ff., who, however, denies the existence of an authority on the part of the Hindu husband equal to that of the Roman pater.
[59] BERNHÖFT, "Zur Geschichte des eur. Familienrechts," ZVR., VIII, 12, 15, who also regards the view of DARGUN, Mutterrecht und Raubehe, 8, 13, as extreme. Cf. his "Principien des eur. Familienrechts," ZVR., IX, 416, n. 39. KOHLER favors the patriarchal system and agnation for the Indic peoples, in ZVR., VII, 201, 210, 216; X, 85. HEARN, Aryan Household, chaps. iii-vi, passim, takes practically the same view as Maine regarding the patriarchal theory, rejecting entirely for the Aryans the matriarchal hypothesis.
[60] The rita-conception is well expressed by DR. BOTSFORD: "This mankind learned from the revolution of sun and stars, from the succession of the seasons, from the unchanging movements of nature. The conception thus gained was transferred to human modes of activity. The sexes in marriage were subject to the naturalis ratio, as well as the continuance of the race through successive generations. The relation of parents to children with their reciprocal obligations and privileges--the protection and support which the father, as the stronger, offered, the kind care of the mother for her infants, the reverence and affection with which the children requited their services, the love of youth and maiden, leading to marriage--all these rested, in the rita period, on the one foundation of natural law."--Athenian Constitution, 29, 30.
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]
[61] The discussion of the two general phases of rita and dharma, with their transitional stages, constitutes one of the most valuable parts of LEIST'S contribution to comparative jurisprudence: Alt-arisches Jus Gentium, 3, 111 ff., 132, 133, 174 ff., 606; Graeco-italische Rechtsgeschichte, 175-285. Cf. BOTSFORD, op. cit., 24, 25, 26 ff., for an excellent account; on the Roman stages see MUIRHEAD, Private Law of Rome, 14-23; and for the Greek themis and the themistes of the hero-kings consult MAINE, Ancient Law, chap. i.
[62] For a definition of dharma see BERNHÖFT, "Ueber die Grundlagen der Rechtsentwicklung bei den indogermanischen Völkern," ZVR., II, 266 ff., 261 ff.
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]
[63] LEIST, Alt-arisches Jus Gentium, 122 ff., 125-33.
[64] BOTSFORD, Athenian Constitution, 10 ff., 21 ff., 25 ff., divides the rita period into two stages: that of the "primitive Aryan household," and that of the "early Ayran household," and thinks that the latter stage is represented by the house-communities of the southern Slavs; but this may be doubted. Dr. Botsford favors the existence of agnation and the absolute power of the father in the rita period; and believes that the liberal tendencies, presently to be pointed out, are a development of the dharma period, beginning before the separation (24-26). On agnation and the power of the early Aryan house-fathers see SCHRADER, Sprachvergleichung und Urgeschichte, 386 ff.; ZIMMER, Altindisches Leben, 319 ff., 326 ff.; DELBRÜCK, Die indogermanischen Verwandtschaftsnamen, 382, 586-88, 543, 544; JOLLY, Ueber die rechtliche Stellung, etc., 4 ff., 20-22; Hindu Law of Partition, 76 ff.
[65] LEIST, op. cit., 80.
[66] On ancestor-worship, in connection with the literature already cited, p. 13, note 4, see LEIST, Graeco-italische Rechtsgeschichte, 7 ff., 121 ff.; Alt-arisches Jus Gentium, 59-118; ZIMMER, Altindisches Leben, 318; SCHNEIDER, Die Naturvölker, I, 202 ff., II, 64 f., 75, 76, 108, 126 f., 255 ff., 369; KOHLER, "Indisches Ehe- und Familienrecht," ZVR., III, 408 ff.; "Studien über künstliche Verwandtschaft," ibid., V, 423-25; also for the Papuas, ibid., VII, 373. For the influence of ancestor-worship among the Slavs see KOVALEVSKY, Mod. Customs and Anc. Laws of Russia, 33 ff.; among the American aborigines, PEET, "Ethnographic Religions and Ancestor-Worship," Am. Antiquarian, XV, 230-45, and "Personal Divinities and Culture Heroes," ibid., 348-72.
[67] MCLENNAN, Patriarchal Theory, 10-14, 275 ff., 282, 284, 294, criticises Maine's theory of adoption. Kohler's investigations show that adoption, artificial brotherhood, milk-kinship, and like institutions have widely prevailed and rendered important service. Adoption, he holds, may arise in different motives; sometimes being due to sexual communism, when it is a means of assigning the children to particular fathers; but very generally arising in the desire for descendants to perpetuate the family-worship: "Studien über die künstliche Verwandtschaft," ZVR., V, 415-40; see also for much important matter his various other writings in ZVR., III, 408-24, 393 ff. (India); VI, 190 (Chins), 345 (Indian Archipelago), 377-79 (China), 403 (Korea); VII, 218 ff. (Punjab); VIII, 100 (Rajputs), 109-12 (Dekkan), 243, 244 (Arabia). See also POST, Familienrecht, 25-42, for an interesting account; also MAYNE, Hindu Law and Usage, 60 ff., 77, 99-207; LEIST, Alt-arisches Jus Gentium, 103 ff., 115, 606; TORNAUW, "Das Erbrecht nach den Verordnungen des Islams," ZVR., V, 151; FRIEDRICHS, "Familienstufen und Eheformen," ibid., X, 237-45; STARCKE, Primitive Family, 146, 233; HUC, Chinese Empire, II, 226.
[68] LEIST, op. cit., 103, 115, 504 ff. On the position of the house-mother cf. HEARN, Aryan Household, 86-91.
[69] LEIST, op. cit., 122, 123, 126 ff., successfully combats the theory of KOHLER ("Indisches Ehe- und Familienrecht," ZVR., III, 394), who declares that it is a cardinal principle of Indo-Germanic legal evolution that "die Vaterschaft beruht auf dem Rechte des Mannes am Weibe, kraft dessen dem Hausvater das Kind des Weibes zukomme, ebenso wie dem Eigenthümer des Feldes die Frucht." The same view is expressed by KOHLER in Krit. Vjschr, N. F., IV, 17, 18; and in "Vorislamitisches Recht," ZVR., VIII, 242. Cf. UNGER, Die Ehe, 11, 77; LIPPERT, Geschichte der Familie, 95 ff., 99, 158.
[70] Although the married son possessed a hearth and was a free member of the gens, "his house did not become fully independent in religious and property matters till the death of the father and the final division of the property."--BOTSFORD, Athenian Constitution, 27, and the sources there cited. Cf. ZIMMER, Altindisches Leben, 326 ff.; LEIST, Alt-arisches Jus Gentium, 124.
[71] MCLENNAN, Patriarchal Theory, chaps. xvi, xvii; LEIST, op. cit., 124, 504 ff.
[72] LEIST, op. cit., 496-508; KOHLER, "Indisches Ehe- und Familienrecht," ZVR., III, 424 ff.
[73] LEIST, Graeco-italische Rechtsgeschichte, 95, 96. Lack of space prevents any attempt at a detailed discussion of the old Aryan or Indic family and matrimonial law; a general reference must suffice: LEIST, Alt-arisches Jus Gentium, 59 ff., 496 ff.; Graeco-italische Rechtsgeschichte, 7 ff., 57 ff., passim; SCHRADER, Sprachvergleichung und Urgeschichte, 379-95; ZIMMER, Altindisches Leben, 305-36; JOLLY, Rechtliche Stellung, 1 ff.; idem, Hindu Law of Partition, 70 ff.; KOHLER, "Indisches Ehe- und Familienrecht," ZVR., III, 342-442; and his various articles, ibid., VI, 344-46 (Indian Archipelago and Caroline Islands); VII, 201-39 (Punjab); VIII, 89-147, 262-73 (Indian customary law); IX, 323-36 (Bengal); X, 66-134 (Bombay); XI, 163-74 (Indian North-west Provinces); BOTSFORD, Athenian Constitution, 2-67 (excellent); WAKE, Marriage and Kinship, 159 ff., 355 ff., index; BERNHÖFT, "Altindisches Familienorganisation," ZVR., IX, 1-45; MCLENNAN, Patriarchal Theory, 50 ff., 96 ff., especially the chapters on "sonship among the Hindoos," 266-339, combating the view of MAINE, Early Law and Custom, 78-121, 232 ff.; Early Hist. of Inst., 116-18, 310 ff.; and MAYNE, Hindu Law and Usage, 50 ff., 60 ff., passim; STARCKE, Primitive Family, 100 ff.; LETOURNEAU, L'évolution du mariage, index; HEARN, Aryan Household; UNGER, Die Ehe, 21-27; BADER, La femme dans l'Inde antique, 39 ff.; JACOLLIOT, La femme dans l'Inde, 7 ff.
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]
[74] BOTSFORD, Athenian Constitution, 50; LEIST, Graeco-italische Rechtsgeschichte, 59 ff. WESTERMARCK, Human Marriage, 230, justly observes that the power of the father among the Greeks, Germans, and Celts, "to expose his children when they were very young and to sell his marriageable daughters, does not imply the possession of a sovereignty like that which the Roman house-father exercised over his descendants at all ages."
[75] LEIST, op. cit., 60, and 59 ff., for his discussion of the Aryan custom of exposing new-born children.
[76] BOTSFORD, op. cit., 51; FUSTEL DE COULANGES, Ancient City, 118, 120, notes; PLUTARCH, Solon, 13.
[77] BOTSFORD, op. cit., 52; LEIST, op. cit., 57, 58, 64, 11 ff.
[78] Ibid., 57-102.
[79] In the post-Homeric age agnation did not exist; see BOTSFORD, op. cit., 73. In general on the Greek family see HRUZA, Ehebegründung nach attischem Rechte, 8 ff.; MCLENNAN, Studies, I, 121-23, especially the essay on "Kinship in Ancient Greece," ibid., 195-246 (favoring the maternal system); BOTSFORD, op. cit., chaps. i, ii, iii, supporting the patriarchal theory; but Dr. Botsford's patriarchal family is not that of Sir Henry Maine; LASAULX, Zur Gesch. u. Philos. der Ehe bei den Griechen, 3 ff.; DARGUN, Mutterrecht und Raubehe, 2, 3, 14; GIRAUD-TEULON, Les origines, etc., 286-301; WAKE, Marriage and Kinship, 24 ff., 355 ff., 366 ff., who criticises McLennan's view in detail for the Aryan peoples; KOVALEVSKY, Tableau, 35, 36; BERNHÖFT, "Das Gesetz von Gortyn," ZVR., VI, 281-304, 430-40; and his "Ehe- und Erbrecht der griechischen Heroenzeit," ibid., XI, 326-64, both articles being of great value; KOHLER, "Die Ionsage und Vaterrecht," ibid., V, 407-14, who proves the existence of "judicial" fatherhood; WESTERMARCK, Human Marriage, 232, 233; UNGER, Die Ehe, 52-65; BADER, La femme grecque, I, 41 ff.; II, 1 ff. See also HEARN, Aryan Household, and FUSTEL DE COULANGES, Ancient City, for much valuable matter.
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]
[80] MCLENNAN, Patriarchal Theory, 120-31; Studies, I, 68 ff., 118; GIRAUD-TEULON, Les origines, etc., 329-32; KOVALEVSKY, Tableau, 31, 32; MAINE, Early Hist. of Inst., 216 ff., passim.
[81] The South Slavonian house community is an early institution; see KRAUSS, Sitte und Brauch der Südslaven, 2 ff., 64-128; BOTSFORD, op. cit., 12-21; GIRAUD-TEULON, op. cit., 340, 341; MCLENNAN, op. cit., 71-119; MAINE, Ancient Law, 118; Early Law and Custom, 232-82. But it is not primitive. KOVALEVSKY, Mod. Customs and Anc. Laws of Russia, chaps. i, ii, finds many survivals, as he believes, of an earlier maternal system of kinship and succession.
[82] The question for the Germans will be again referred to; see chap. vi, below.
[83] GAIUS, I, 55, Poste, 61.
[84] Such is the view of MCLENNAN, Patriarchal Theory, 136-40, 181 ff., 205 ff., 214, 260-62, where Maine's theory of agnation is criticised.
[85] "The last vestiges of the two disappeared from the law together. But, in fact, agnation went first. The paternal powers were susceptible of abridgment and restriction in various ways short of extinction. The wife might become free from them; the children also; and yet they might remain for the slaves. And it was thus gradually that they perished. But agnation is perfect, or it ceases to be agnation. And the moment the ties of blood through women received civil effects agnation was no more."--Patriarchal Theory, 182. On the decay of agnation and patria potestas see SOHM, Institutes, 357, 358, 389-93, 438-47; PUCHTA, Institutionen, II, 18, 384 ff., 431 ff., 457 ff.; MUIRHEAD, Introduction to the Private Law of Rome, 422 ff., 343-49; MAINE, Ancient Law, chap. v; MOREY, Roman Law, 78, 129, 150, 240-43, 248.
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.
[86] MCLENNAN, Patriarchal Theory, 190.
[87] Ibid., 194, 195.
[88] Ibid., 204-14. Cf. MUIRHEAD, Introduction to the Private Law of Rome, 43.
[89] PLUTARCH, Roman Questions, VI, tells us that "in early times the prohibition of marriage extended as far as the tie of blood; and, if this be received, it involves--since the gentiles considered themselves to be of the same blood--that there could not be marriage between persons of the same gens."--MCLENNAN, op. cit., 206, 207.
[90] LEIST, Graeco-italische Rechtsgeschichte, 95, 96, also denies (against MARQUARDT, Privatleben, I, 22, 29) that the distinctive feature of the Roman family is dependent on the patriarchal authority, since the elements of agnation and paternal power are Aryan. BERNHÖFT, "Germanische und moderne Rechtsideen im rezipirten röm. Recht," ZVR., IV, 234, holds that Roman agnation does not depend upon blood-relationship, but upon power; and this was an Aryan characteristic; idem, Röm. Königszeit, 69 ff., 94, 201. McLennan's hypothesis is plausible, though not strongly supported by proof. Cf. STARCKE, Primitive Family, 101; WAKE, Marriage and Kinship, 384, 385.
[91] Such are the isolated facts comprised in the early annals which seem to imply acknowledged kinship in the female line, even precedence of the latter; the fact that the status of slaves, illegitimate children, and the children of concubines was determined by the condition of the mother; the effects of marriage by usus; the supposed evidences of former wife-capture and wife-purchase, marking the transition to the agnatic system; the instances of wife-lending as by the elder Cato; and especially the plebeian element; for cognation, not agnation, prevailed among the plebeians, and possibly among them kinship was at first counted only through the mother; see DARGUN, Mutterrecht und Raubehe, 9-13, 14; Mutterrecht und Vaterrecht, 115; BERNHÖFT, "Zur Geschichte des europäischen Familienrechts," ZVR., VIII, 197-201; "Germanische und moderne Rechtsideen im rezipirten röm. Recht," ibid., IV, 227 ff.; Staat und Recht der röm. Königszeit, 192, 202-7; GIRAUD-TEULON, Les origines du mariage, 408-26; SOHM, Institutes, 360, 361, notes; KARLOWA, Die Formen der röm. Ehe, 1 ff.; MCLENNAN, Patriarchal Theory, 194 ff., 205 ff., 259 ff.
[92] "Die Ehe des römischen Civilrechts (justum matrimonium) war eine formgebundene, durch und durch künstliche Institution."--DARGUN, Mutterrecht und Raubehe, 10. Cf. BERNHÖFT, Staat und Recht der röm. Königszeit, 196 ff.
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.