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.

[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.