Chapter II: Theory of the Horde and Mother-Right (1)

[BIBLIOGRAPHICAL NOTE II.--A pioneer in the
comparative history of marriage and the family is Unger, _Die
Ehe in ihrer welthistorischen Entwicklung_ (Vienna, 1850), who
notices many of the leading phenomena connected with these
institutions in different parts of the world; but his book
is essentially a _Tendenzschrift_, to prove the elevating
influence of Christianity and Teutonism. The literature of the
Horde and Mother-Right opens, however, with Bachofen's singular
but learned treatise, _Das Mutterrecht: Eine Untersuchung
über die Gynaikokratie der alten Welt nach ihrer religiösen
und rechtlichen Natur_ (Stuttgart, 1861), of which the
original edition is now exceedingly scarce, although there
is an exact reprint (Basel, 1897). This work is supplemented
by Bachofen's _Die Sage von Tanaquil_ (Heidelberg, 1870),
and his _Antiquärische Briefe_ (Strassburg, 1886). Upon the
_Mutterrecht_ was based Giraud-Teulon's _La mère chez certains
peuples de l'antiquité_ (Paris and Leipzig, 1867); followed by
_Les origines de la famille_ (Geneva, 1874), and _Les origines
du mariage et de la famille_ (Geneva and Paris, 1884), in both
of which Bachofen's principal conclusions are supported with
much new material. A thoroughgoing disciple of the same school
is Lippert, _Die Geschichte der Familie_ (Stuttgart, 1884);
and _Kulturgeschichte der Menschheit_ (Stuttgart, 1886-87).
Very important also in this connection are the _Mutterrecht und
Raubehe_ of Dargun (Breslau, 1883), and his later treatise,
_Mutterrecht und Vaterrecht_ (Leipzig, 1892), a very able
defense of the theory of mother-right for the Aryan peoples
after the separation, though conceding that the maternal system
was not developed in the primitive stage.

A scholar, who in the main belongs to the same group and who
is one of the foremost students of the laws and usages of
savage and barbarous peoples, is Post, whose more important
writings are _Die Geschlechtsgenossenschaft der Urzeit_
(Oldenburg, 1875); _Der Ursprung des Rechts_ (Oldenburg, 1876);
_Die Anfänge des Staats- und Rechtsleben_ (Oldenburg, 1878);
_Die Grundlagen des Rechts_ (Oldenburg, 1884); _Einleitung
in das Studium der ethnologischen Jurisprudenz_ (Oldenburg,
1886); _Afrikanische Jurisprudenz_ (Oldenburg and Leipzig,
1887); _Studien zur Entwicklungsgeschichte des Familienrechts_
(Oldenburg and Leipzig, 1889); and "Die Kodifikation des
Rechts der Amaxosa von 1891," in _ZVR._, XI. The last-named
paper may be read in connection with Rehme's "Ueber das Recht
der Amaxosa," in _ZVR._, X; Kohler's "Ueber das Negerrecht,
namentlich in Kamerun," _ibid._, XI; Bertholon, "Les formes de
la famille," in _Arch. de l'anth. crim._, VIII (1893); Zöller,
_Forschungsreisen in der Kolonie Kamerun_ (Berlin and Stuttgart,
1886); the _Kamerun_ of Buchner (Leipzig, 1887); Munzinger's
_Ostafrikanische Studien_ (Schaffhausen, 1864); the important
work of Fritsch, _Die Eingeborenen Süd-Afrikas_ (Breslau, 1872),
treating of the family customs of various aboriginal tribes;
Kranz, _Natur- und Kulturleben der Zulus_ (Wiesbaden, 1880);
Kingsley, _Travels in West Africa_ (London, 1897); Tillinghast,
_The Negro in Africa and America_ (New York, 1902).

By entirely different routes the theories of universal communism
and mother-right were reached by Lewis H. Morgan, beginning
with the _League of the Iroquois_ (Rochester, 1851); followed
by his great work on _Systems of Consanguinity and Affinity_
(Washington, 1871); the systematic treatise entitled _Ancient
Society_ (New York, 1878); and the _Houses and House-Life of the
American Aborigines_ (Washington, 1881); and by J. F. McLennan,
_Primitive Marriage_ (1865); reprinted with other papers as
_Studies in Ancient History_ (London, 1876). After the author's
death appeared the _Patriarchal Theory_ (London, 1885), edited
and completed by his brother Donald McLennan; and the second
series of _Studies_ (London and New York, 1896), edited by his
widow and Arthur Platt.

Sir John Lubbock, _Origin of Civilization_ (New York, 1889),
maintains the theory and introduces the name of "communal
marriage." McLennan is in the main supported by Robertson Smith,
_Kinship and Marriage in Early Arabia_ (Cambridge, 1885). This
book may be read in connection with Wilken, _Das Matriarchat bei
den alten Arabern_ (Leipzig, 1884); Kohler, "Vorislamitisches
Recht der Araber," in _ZVR._, VIII; Friedrichs, "Das Eherecht
des Islams," _ibid._, VII; Vincenti, _Die Ehe im Islam_ (Vienna,
1876); Pischon, _Der Einfluss des Islams auf das häusliche,
soziale, und politische Leben seiner Bekenner_ (Leipzig,
1881); Perron, _Femme arabe_ (Paris and Alger, 1858); Kremer,
_Kulturgeschichte des Orients unter den Kalifen_ (Vienna, 1875);
Vámbéry, _Der Islam im neunzehnten Jahrhundert_ (Leipzig, 1875);
his _Türkenvolk_ (Leipzig, 1885); Hanoteau and Letourneux, _La
kabylie et les coutumes kabyles_ (Paris, 1893); and Baway,
"The Marriage Customs of the Moors of Ceylon," in _Journal
of the Royal Asiatic Society_, Ceylon Branch, 1887-88, X,
219-33 (Colombo, 1888). Read also Redhouse, _Notes on Tylor's
'Arabian Matriarchate,'_ propounded by Tylor before the British
Association, Montreal, 1884.

For the matrimonial institutions of the Australian aborigines,
whose so-called "group-marriage" has played so great a part
in speculation, see especially Fison and Howitt, _Kamilaroi
and Kurnai_ (Melbourne, 1880), supplemented by their "Deme
and the Horde," in _Journal of the Anth. Inst._, XIV, 142-68
(London, 1885), comparing Attic and Australian classes and
local divisions; Fison's article on "Primitive Marriage,"
in _Pop. Sci. Monthly_, XVII (New York, 1880); his paper on
"Classificatory Systems of Relationship," in _Brit. Assoc. Adv.
Sci._ (Oxford, 1894); Howitt's "Remarks on the Class Systems
Collected by Mr. Palmer," in _Journal of the Anth. Inst._,
XIII, 335-46 (London, 1884); his "Dieri and Other Kindred
Tribes of Central Australia," _ibid._, XX; "Further Notes on
the Australian Class Systems," _ibid._, XVIII, 31-36 (London,
1889); "Organization of Australian Tribes," in _Trans. Roy.
Soc. of Victoria_, I, Part II (1889); and his "Australian Group
Relations," in _Rep. Smith. Inst._, 1883 (Washington, 1885).
Important also are Cunow, _Die Verwandtschafts-Organisationen
der Australneger_ (Stuttgart, 1894), supplementing Morgan's
_Ancient Society_, while rejecting some of Morgan's and Fison's
conclusions; Kohler, "Das Recht der Australneger," in _ZVR._,
VII; his later _Zur Urgeschichte der Ehe_ below named; McLennan,
_Studies_, II, 278-310; Curr, _The Australian Race_ (Melbourne,
1886), rejecting the theory of "group-marriage" and promiscuity;
especially Roth's _North-West-Central Queensland Aborigines_
(Brisbane and London, 1899); and Spencer and Gillen's very
able and detailed account of the _Native Tribes of Central
Australia_ (New York and London, 1899), both of which works,
like those of Kohler, tend to sustain the general, though not
all the incidental, conclusions of Fison and Howitt. Among the
many papers and books useful for studying the social life of
the Australians are Palmer, "Notes on Some Australian Tribes,"
in _Journal of the Anth. Inst._, XIII (London, 1884); Mathew,
"The Australian Aborigines," in _Journal of the Royal Society
of New South Wales_, XXIII (Sydney, 1889); Mathews, "Australian
Class Systems," in _The Am. Anthropologist_, IX, X (Washington,
1896-97); and his "The Victorian Aborigines," _ibid._, XI
(Washington, 1898). Supplementary materials may likewise be
found in Dawson, _Australian Aborigines_ (Melbourne, Sydney,
and Adelaide, 1881); Jung, _Das Welttheil Australien_ (Leipzig,
1882); Smyth, _Aborigines of Victoria_ (London, 1878); Smith and
Stewart's _The Booandik Tribe_ (1880); Lang, _Social Origins_;
Atkinson, _Primal Law_ (published together, London, New York,
and Bombay, 1903); and especially Crawley, _Mystic Rose_ (London
and New York, 1902).

McLennan was first systematically and luminously criticised
by Spencer, in Part III of his _Principles of Sociology_
(published, in parts, 1874-77; complete, New York, 1879).
McLennan replied in two articles in the _Fortnightly Review_,
XXVII (London, 1877); and in turn Spencer has a "Rejoinder,"
reprinted in his _Various Fragments_ (New York, 1898). Gomme
supplements McLennan's evidences for his "Theory of the
Primitive Horde," in _Journal of Anth. Inst._, XVII (London,
1888); and this article is criticised by Wake, _Primitive
Human Horde_, reprinted from _ibid._, February, 1888. Morgan
is supported by Engels, _Ursprung der Familie_ (Stuttgart,
1892). His researches are appreciatively reviewed and
supplemented by Bernhöft, _Verwandtschaftsnamen und Eheformen
der nord-amerikanischen Volksstämme_ (Rostock, 1888); and
they are criticised by Lubbock, "On the Development of
Relationships," in _Journal of Anth. Inst._, I (London, 1872).
The views of Morgan and McLennan are examined by Wake in his
"Classificatory Systems of Relationship," _ibid._, VIII (London,
1879); and his "Primitive Human Family," _ibid._, IX (London,
1880). See also his "Nature and Origin of Group Marriage,"
_ibid._, XIII (London, 1884); and his _Le mariage communal_
(Paris, 1875), replying to Barbier. An able conservative
writer, vigorously and learnedly attacking the fundamental
conclusions of recent sociological and ethnological science, is
Schneider, _Die Naturvölker: Missverständnisse, Missdeutungen
und Misshandlungen_ (Paderborn and Münster, 1885-86). He is
severely criticised by Hellwald, whose _Menschliche Familie_
(Leipzig, 1889) is one of the most original contributions
to our subject. This was preceded by the same writer's
_Kulturgeschichte_ (3d ed., Augsburg, 1883). Important
monographs are Bobbio, _Sulle origine e sul fondamento della
famiglia_ (Turin, 1891); and the clear summary of Th. Achelis,
_Die Entwicklung der Ehe_ (Berlin, 1893); which may be read in
connection with Dr. A. Achelis's "Geschlechtsgenossenschaft," in
_Zeitschrift der Gesellschaft für Erdkunde_, No. 148 (Berlin,
1890). Of service also in connection with various topics are
Cunow, "Die ökonomischen Grundlagen der Mutterherrschaft," in
_Neue Zeit_, No. 4, XVI. Jahrg., I. Band (Stuttgart, 1897);
Ploss, "Ueber das Heirathsalter der Frauen bei verschiedenen
Völkern," in _Mittheilungen der Ver. für Erdkunde_, 1872
(Leipzig, 1873); Redslob, _Levirats-Ehe bei den Hebräern_
(Leipzig, 1836); Danks, "Marriage Customs of the New Britain
Group," in _Journal of Anth. Inst._, XVIII, No. 3; Roth,
"Significance of the Couvade," _ibid._, XXII (London, 1893);
Peal, "On the 'Morong,' as Possibly a Relic of Pre-Marriage
Communism," _ibid._, XXII; Ellis, "On Polyandry," in _Pop.
Sci. Monthly_, October, 1891; _idem_, _Tschi-Speaking Peoples_
(London, 1887); _idem_, _Ewe-Speaking Peoples_ (London, 1890);
Brouardel, _L'infanticide_ (Paris, 1897); Frazer, _Totemism_
(Edinburgh, 1887); Peet, "Tribal Records in the Effigies," in
_Am. Antiquarian_, XV (Chicago, 1893); Lubbock, "Social and
Religious Condition of the Lower Races of Man," _Rep. Smith.
Inst._, 1869 (Washington, 1872); Stricker, "Untersuchungen über
die kriegerischen Weiber," in _Archiv für Anthropologie_, V;
his _Amazonen in Sage und Geschichte_ (Berlin, 1868); Avery,
"Races of the Indo-Pacific Oceans," in _Am. Antiquarian_, VI
(Chicago, 1884); Greenwood, _The Wild Man at Home_ (London,
n. d.); Peschel, _Races of Man_ (London, 1889); Zmigrodski's
interesting _Die Mutter bei den Völkern des arischen Stammes_
(Munich, 1886); Peet, "Houses and House-Life among the
Pre-Historic Races," in _Am. Antiquarian_, X (Chicago, 1888),
taking the same general view as Morgan; and his "Earliest
Abodes of Men," _ibid._, XV (Chicago, 1893). To bring criticism
down to date read Tillier's able and suggestive book _Le
mariage: sa genèse, son évolution_ (Paris, 1898); Tylor, "The
Matriarchal Family," in _Nineteenth Century_, XL, 81 (July,
1896); Kohler, _Zur Urgeschichte der Ehe_ (Stuttgart, 1897);
Giddings, _Principles of Sociology_ (New York and London, 1896);
and especially the discussions of the matriarchate, the forms
of marriage, and similar topics by Abrikossoff, Westermarck,
Letourneau, Kovalevski, and others in _Annales de l'institut
international_ (Paris, 1896).

A mass of materials relating to every phase of the subject
for many peoples may be found in the large general works of
Klemm, _Cultur-Geschichte der Menschheit_ (Leipzig, 1843-52);
Waitz-Gerland, _Anthropologie der Naturvölker_ (Leipzig,
1860-72; 2d ed., begun 1877); Featherman, _Social History of
the Races of Mankind_ (London, 1881-91); and Ratzel, _History
of Mankind_ (London and New York, 1896-98). General summaries
are given by Adams, "Primitive Rights of Women," in _Historical
Essays_ (New York, 1891); McGee, "The Beginnings of Marriage,"
in _Am. Anthropologist_, IX (Washington, 1896); Solotaroff,
"Origin of the Family," _ibid._, XI (Washington, 1898);
Nadaillac, _L'évolution du mariage_ (Paris, 1893); Brinton,
"Religions of Primitive Peoples," in his _American Lectures_,
2d series (New York and London, 1897); Devas, _Studies in
Family Life_ (London and New York, 1886); Lang, "Early History
of the Family," in his _Custom and Myth_ (London, 1884); Miln,
_Wooings and Weddings_ (Chicago, 1900); and Hutchinson's
popular _Marriage Customs in Many Lands_ (London, 1897). An
earlier book, inferior though similar in scope to the one last
named, is Hamilton's _Marriage Rites, Customs, and Ceremonies_
(London, 1822). Of little value, except as marking the beginning
of attempts to write general histories, are Moore, _Marriage
Customs_ (London, 1814; 2d ed., 1820); Laumier, _Cérémonies
nuptiales_ (Paris, 1829); the anonymous _Hochzeitsgebräuche
aller Nationen_ (Swabach, 1783); and Hurtaut's _Coup d'œil
anglois sur les cérémonies du mariage_ (Geneva, 1750), compiled
from Louis de Gaya's _Cérémonies nuptiales_ (original ed.,
Paris, 1680). The subject is also treated by Schroeder, _Das
Recht in der geschlechtlichen Ordnung_ (Berlin, 1893); Gage,
_Woman, Church, and State_ (Chicago, 1893); and Mason, _Woman's
Share in Primitive Culture_ (New York, 1894). Mucke, _Horde und
Familie_ (Stuttgart, 1895), traces the classificatory systems
of kinship to original "space-relationships" in the horde
camping-place, and the work is a remarkable example of ingenious
though fantastic speculation on a large scale.

For the matrimonial customs of low races, especially valuable
are Krause, _Die Tlinkit-Indianer_ (Jena, 1885); Marshall,
_A Phrenologist amongst the Todas_ (London, 1873); and the
magnificent volumes of Paul and Fritz Sarasin, _Die Weddas von
Ceylon_ (Wiesbaden, 1892-93). For examples of sexual practices,
commonly regarded as survivals of original promiscuity, see
Buch, _Die Wotjäken_ (Helsingfors, 1882); Kohler, "Studien über
Frauengemeinschaft," in _ZVR._, V; Bastian, _Rechtsverhältnisse_
(Berlin, 1872); his "Eheverhältnisse," in _ZFE._, VI; and his
"Matriarchat und Patriarchat," _ibid._, _Verhandlungen_ (Berlin,
1886); Ploss, _Das Weib_ (Leipzig, 1895); his _Das Kind_
(Leipzig, 1884); and Mantegazza's _Geschlechtsverhältnisse des
Menschen_, constituting with the earlier _Physiologie der Liebe_
and _Hygiene der Liebe_ his so-called "trilogy of love." For
the bearings of phallicism on the subject read Howard's _Sex
Worship_ (2d ed., Washington, 1898), containing a bibliography.
In this connection are also of service the works on "seignorial
right," the most elaborate monograph being Schmidt's _Jus primae
noctis_ (Freiburg, 1881), containing a full bibliography. See
also his _Slavische Geschichtsquellen zur Streitfrage über das
Jus Primae Noctis_ (Posen, 1886); his paper in _ZFE._, XVI; and
Kohler's criticism, _ZVR._, IV, V. Against its existence as a
right of the mediæval lord are Veuillot, _Droit du seigneur_
(1st ed., Paris, 1854; 3d ed., 1878); Raepsaet, _Recherches_
(Gand, 1817); Barthélemy, "Droit du seigneur," in _Revue des
questions historiques_, I (Paris, 1866), a critical paper
of value; and Labessade, _Droit du seigneur et la rosière
de Salency_ (Paris, 1878). In his _Réponse_ (Paris, 1857)
Delpit makes a vigorous and detailed reply to the arguments of
Veuillot (early edition). See also Foras, _Droit du seigneur_
(Chambéry, 1886); and, for comparison, read "Bibliophile's"
_Les nuits d'épreuve des villageoises allemandes avant le
mariage_ (Brussels, 1877); Grupen's quaint _De uxore theotisca_
(Göttingen, 1748); and Fischer's remarkably valuable and
interesting _Probenächte der teutschen Bauernmädchen_ (Berlin
and Leipzig, 1780; reprinted, Leipzig, 1898).

To "break ground" for the study of the subject it may be well
in the outset to read chaps. iii and iv of Posada's _Théories
modernes_; Kautsky's "Entstehung der Ehe und Familie," in
_Kosmos_, XII; Friedrichs, "Ursprung des Matriarchats," in
_ZVR._, VIII, in connection with his "Zur Matriarchatsfrage," in
_ZFE._, XX; and especially his "Familienstufen und Eheformen,"
in _ZVR._, X. The literature and the theories are also reviewed
by Bernhöft, "Zur Gesch. des eur. Familienrechts," _ibid._,
VIII; and Schurman gives an interesting summary and criticism in
_Ethical Import of Darwinism_ (New York, 1888).

For the works of Wake, Letourneau, Starcke, Westermarck, and
other antagonists of the horde theory, see BIBLIOGRAPHICAL
NOTE III.]

I. BACHOFEN AND HIS DISCIPLES

In the same year with the _Ancient Law_ appeared a book which was destined to have an extraordinary influence in giving a new direction to speculation and research. This was the _Mutterrecht_ of the Swiss scholar Johann Jacob Bachofen, whose memory is revered by many followers.[93] The author shows a wide and minute acquaintance with classic literature and the early myths; but his work is fantastic and almost wholly devoid of scientific method.[94] The material is drawn mainly from two sources: the fragmentary notices of the rules of kinship and the matrimonial customs of various peoples handed down from ancient writers, supplemented slightly through similar accounts by modern travelers; and an interpretation of the supposed symbolism of religious myths, particularly those of the Greeks.[95] The inferences derived from this second source are often far-fetched and fanciful in the extreme. Though the general results of the investigation are summarized in a short introduction, the argument is so loose, the arrangement so confusing, and the style so obscure that it is with the utmost difficulty the author's meaning can be gathered. Nevertheless it is undeniable that he has created the terminology and developed the essential elements of the communistic and gynocratic theories even in their leading details.

[93] See, for example, LIPPERT, _Geschichte der
Familie_, 4, 5; KOHLER, in _ZVR._, IV, 266 ff.,
who regards Bachofen as the "Altmeister der ethnologischen
Jurisprudenz;" and GIRAUD-TEULON, _Mariage et la
famille_, 146 ff., _passim_. _Cf._ KAUTSKY, in _Kosmos_,
XII, 348.

[94] DELBRÜCK, "Das Mutterrecht bei den Indogermanen,"
in _Preussische Jahrbücher_, XCVII, 15, characterizes the
work as "fantastic," though resting upon "einer äusserst
ausgebreiteten Gelehrsamkeit." DR. STARCKE'S criticism
is too severe: "We should rather call his 'Mutterrecht' the
rhapsody of a well-informed poet than the work of a calm and
clear-sighted man of science."--_Primitive Family_, 243. For
the best analysis of Bachofen, see _ibid._, 241-51. _Cf._ also
BERNHÖFT, "Zur Geschichte des eur. Familienrechts," in
_ZVR._, VIII, 4, 5; LUBBOCK, _Origin of Civilization_,
98 ff.; MCLENNAN, _Studies in Ancient History_, I,
319-25; GIRAUD-TEULON, _La mère chez certains peuples
de l'antiquité_, 6 ff.; ZMIGRODSKI, _Die Mutter_, 178
ff., 196 ff., 311 ff., _passim_; SCHMIDT, _Jus primae
noctis_, 31, 36-38, 178, 190; WAKE, _Marriage and
Kinship_, 14 ff., 257, 258; KAUTSKY, "Die Entstehung der
Ehe und Familie," _Kosmos_, XII, 256, 257, 348; ACHELIS,
_Die Entwicklung der Ehe_, 6 ff.; POSADA, _Théories
modernes_, 47 ff., 148; CHAMBERLAIN, _The Child and
Childhood in Folk-Thought_, 12 ff.

[95] The author first discusses the account given by Herodotus
and others of Lycian customs, which account, he declares,
contains the clearest and most valuable evidence of the
existence and character of _Mutterrecht_ (v). Then follows a
similar treatment of the evidence derived from Crete, Athens,
Lemnos, Egypt, India and central Asia, Orchomenos and the Minyœ,
Epizephyrian Locris, Elis, Lesbos, Mantinea, the Cantabrians, and
from the Pythagorean system.

According to Bachofen, there are three general phases in the evolution of human sexual relations. The first is the period of aphrodistic hetairism, in which men and women have each other in common; the second is the period of demetrian mother-right or gynocracy, in which kinship and succession are in the maternal line and woman gains religious and political supremacy; and the third, the period of the patriarchate or apollonistic father-right, in which the more spiritual principle of paternity is triumphant.[96] Each of these periods is regarded as a universal culture-stage.[97]

[96] _Das Mutterrecht_, vi, xviii-xix, xxi, _passim_.

[97] _Ibid._, vi. "Wie auf die Periode des Mutterrechts die
Herrschaft der Paternität folgt, so geht jener eine Zeit
des regellosen Hetärismus voran."--_Ibid._, xviii. For many
illustrations, see the Index at "Aphrodite," "Demeter," and
"Apollo," the names of the divinities presiding respectively over
the three phases.

In the first phase, or that of the unregulated communism, material motherhood is the essential fact. Fatherhood is necessarily uncertain. There is no conception of kinship between father and child. Woman, it is assumed, is exposed to the lust or sexual tyranny of man; and it is through her successful revolt against the bondage of unbridled hetairism that she attains the second stage of progress.[98] The period of demetrian gynocracy is therefore represented as a turning-point, a transitional phase, through which humanity passes from its lowest to its highest status. With it the rudiments of marriage appear, but combined with hetairism surviving in various forms or gradations. It is the woman and not the man who obeys the marriage law.[99] Indeed, strict marriage, the exclusive appropriation of a woman by one man, is looked upon as an abridgment of a natural or religious right for which expiation must be rendered to the goddess whose law is violated;[100] and only thus, as a penalty or composition for the privilege of restricted intercourse, can be rationally explained those lascivious customs, such as temporary prostitution, so often found in connection with legal marriage.[101]

[98] "Es kann nicht verkannt werden: die Gynaikokratie hat
sich überall in bewusstem und fortgesetztem Widerstande der
Frau, gegen den sie erniedrigenden Hetärismus hervorgebildet,
befestigt, erhalten."--_Ibid._, xix; _cf._ xviii, 17-18.

[99] _Ibid._, 18, _passim_. _Cf._ STARCKE, 245.

[100] "Das demetrische Prinzip erscheint als die Beeinträchtigung
eines entgegengesetzten ursprünglichern, die Ehe selbst als
Verletzung eines Religionsgebots.... Nur aus ihm erläutert sich
der Gedanke, dass die Ehe eine Sühne jener Gottheit verlangt,
deren Gesetz sie durch Ausschliesslichkeit verletzt. Nicht um in
den Armen eines Einzelnen zu verwelken, wird das Weib von der
Natur mit allen Reizen, über welche sie gebietet, ausgestattet;
das Gesetz des Stoffes verwirft alle Beschränkung, hasst alle
Fesseln, und betrachtet jede Ausschliesslichkeit als Versündung
an ihrer Göttlichkeit."--_Das Mutterrecht_, xix. In general, on
the antagonism of Aphrodite to marriage, see _ibid._, 13, 71,
134, 137, 310, 320, 325.

[101] "Die Prostitution wird selbst eine Bürgschaft der ehelichen
Keuschheit, deren Heilighaltung eine vorausgegangene Erfüllung
des natürlichen Berufes von Seite der Frau erfordert."--_Ibid._,
xix.

A difficulty, however, presents itself. The theory of Bachofen assumes, as a general fact in social evolution, that a period of promiscuity and oppression of the female sex is followed, not merely by an age of mother-right, involving as a necessary consequence of the continued uncertainty of fatherhood the recognition of kinship only in the maternal line; but by an age of gynocracy, involving the social leadership of women and eventually the political and even the military subordination of men. Woman emancipates herself and then she becomes an Amazon. "Weary of the lust of man, she first feels a longing for a securer position and a purer existence. The feeling of shame and the rage of despair inflame her to armed resistance."[102] As "a rival to man, the Amazon became hostile to him, and began to withdraw from marriage and from motherhood. This set limits to the rule of women, and provoked the punishment of heaven and men. Thus Jason put an end to the rule of the Amazons in Lemnos; thus Dionysos and Bellerophon strove together, passionately, yet without obtaining any decisive victory, until Apollo with calm superiority finally became the conqueror;"[103] and so the purer principle of fatherhood prevailed and the era of father-right appeared. But, says Bachofen, that woman should gain supremacy over man arouses our astonishment, because the fact is contrary to what we should expect from their relative physical powers. "The law of nature delivers the scepter of power to the stronger." The paradox, however, is easily explained. "At all times woman has exerted the most powerful influence upon man, upon the culture and morals (_Gesellung_) of peoples," through the direction of her mind toward the supernatural, the wonderful, and the divine. Through her possession of the mysteries of religion she deprived man of the superior position which nature had given him. "Religion is the only efficient lever of all civilization. Each elevation and depression of human life has its origin in a movement which begins in this supreme department."[104] "Just as the child receives its first discipline from the mother, so do peoples receive it from woman. The man must serve before he can attain supremacy. To the wife alone it is given to tame the unbridled power of man and to guide him in the path of well-doing."[105] But amazonism was a shock to the religious feeling in the stage of mother-right, just as gross hetairism was an offense in the former period. Hence arose a striving for the realization of a higher conception of social relations. "It was the assertion of fatherhood which delivered the mind from natural appearances, and when this was successfully achieved, human existence was raised above the laws of material life. The principle of motherhood is common to all the species of animal life, but man goes beyond this tie in giving the pre-eminence to the power of procreation, and thus becomes conscious of his higher vocation.... In the paternal and spiritual principle he breaks through the bonds of tellurism and looks upward to the higher regions of the cosmos. Victorious fatherhood thus becomes as distinctly connected with the heavenly light as prolific motherhood is with the teeming earth."[106] "All the stages of sexual life, from aphrodistic hetairism to the apollonistic purity of fatherhood, have their corresponding type in the stages of natural life, from the wild vegetation of the morass, the prototype of conjugal motherhood, to the harmonic law of the Uranian world, to the heavenly light which, as the _flamma non urens_, corresponds to the eternal youth of fatherhood. The connection is so completely in accordance with law, that the form taken by the sexual relations of life may be inferred from the predominance of one or the other of these universal substances in worship."[107]

[102] _Ibid._, xxiv.

[103] STARCKE, _Primitive Family_, 246. On the Amazon
myth see BACHOFEN, _Das Mutterrecht_, xxiv ff., 85.
For many examples of amazonism noticed in the work see Index at
"Amazonen;" and compare GIRAUD-TEULON, _Mariage et la
famille_, 302-28, who accepts the view of Bachofen and gives an
elaborate discussion. According to KOVALEVSKY, _Mod.
Customs and Ancient Laws of Russia_, 16 ff., there are evidences
of amazonism found among the Slavs. Compare STRICKER,
"Untersuchungen über die kriegerischen Weiber," _Archiv für
Anthropologie_, V; and his _Amazonen in Sage und Geschichte_.

[104] _Das Mutterrecht_, xiii, xiv. See STARCKE'S fine
translation of these passages, _op. cit._, 243-45.

[105] _Das Mutterrecht_, 19; _cf._ STARCKE, 245.

[106] STARCKE'S summary, _op. cit._, 244;
BACHOFEN, xxvii.

[107] STARCKE'S summary, _op. cit._, 244, 245;
BACHOFEN, xxix.

The theories of Bachofen have given rise to luxurious speculation. With slight modification his conclusions have been accepted by a host of faithful disciples. By others they have been criticised or abandoned. Various schemes have been constructed in the attempt to explain the sequence in which the forms of marriage and the phases of the family have historically appeared. With the literature of this speculation, so far as primitive communism is assumed, the present chapter is concerned. As a rule, only the incidental or negative results of criticism will be noticed, leaving for the following two chapters the criticism originating in a wholly different view of social evolution.

It is convenient in the outset to note the importance of carefully distinguishing between the conception of mother-right, implying kinship in the female line, and that of gynocracy, denoting the supremacy of the female sex.[108] Bachofen, as already seen, uses _Mutterrecht_ as comprehending gynocracy; while some of his followers likewise speak confidently of a time when women took social precedence of men, or even held them in political subjection. Such is the view of Giraud-Teulon, who, with Bachofen, interprets the Amazon myth as implying an age in which women exercised a decided social and political domination.[109] Lippert and Unger take a similar position.[110] On the other hand, it is maintained by a number of writers, who reject the idea of a political or military gynocracy, that the inheritance of name and family rights through the mother usually gives woman a decided precedence in the sphere of social life and private law. This is the opinion of Kautsky, who declares that mother-right involves the headship of woman in the family.[111] Peschel,[112] Tylor,[113] Letourneau,[114] and Hellwald[115] hold a similar view; and with them Grosse,[116] Kohler,[117] and Friedrichs,[118] though more reserved, appear in the main to coincide. Dargun likewise rejects the idea of woman's political supremacy, while holding that mother-right sometimes grows into a real matriarchate so far as private law is concerned.[119] The weight of evidence, however, shows that even this modified view exaggerates the advantages gained by woman under mother-right. It may be admitted that here and there--as for instance among the Sioux, the Wyandots, and some other American peoples[120]--the determination of the child's social and legal rights through the mother has somewhat ameliorated the condition of woman. Yet often, as Dargun[121] has so well shown, the same custom has not enabled her to escape social degradation or marital bondage.[122] She is rather the medium through which rights are conveyed and relations established. "Thus, for instance, among the Australians, with whom the clan of the children is, as a rule, determined by that of the mother, the husband is, to quote Mr. Curr, almost an autocrat in his family, and the children always belong to his tribe."[123] Dr. Starcke reaches a similar conclusion. Referring to the "important place" taken by the wife among various African peoples, he declares that all which "has been said only shows that women in some instances enjoy privileges which are always enjoyed by men."[124] In short, if among many peoples at some stage of progress research has clearly demonstrated the existence of mother-right, it has just as clearly shown that the notion of a gynocracy, of a period of female supremacy, is without historical foundation.

[108] FRIEDRICHS, "Familienstufen und Eheformen,"
_ZVR._, X, 190, 191, rejects the use of _Mutterrecht_ as being
practically of "no significance," preferring _Matriarchat_
(from ἄρχειν = "to lead") to denote the uterine system of
relationship; and _Gynaikokratie_, "gynocracy" (from κρατεĩν =
"to rule") to express the idea of the domination of women over
men. "Gynocracy" is used to express this idea by the Jesuit
LAFITAU (_Mœurs des sauvages_, 1724), borrowed from
STRABO (_Geogr._, lib. iii); PESCHEL, _Races of
Man_, 234; PLOSS, _Das Kind_, II, 393. MUCKE,
_Horde und Familie_, 108 ff., 114 ff., 174 ff., _passim_,
rejects the use of _Mutterrecht_ and _Vaterrecht_, and adopts
the terms "gynocratic" and "androcratic" family; but these
designations had already been employed by other writers, _e. g._,
by PLOSS, _op. cit._, II, 393-96. "Metrocracy" also
appears: WESTERMARCK, _Human Marriage_, 98.

But Dargun's use of _Mutterrecht_ and _Vaterrecht_ to express
maternal or paternal kinship, and _Matriarchat_ and _Patriarchat_
to express maternal or paternal power, seems preferable, in
order to avoid confusing the two conceptions; see above,
chap. i, p. 21. Compare further GROSSE, _Die Formen
der Familie_, 11, who uses _Mutterfolge_ and _Vaterfolge_
respectively as opposed to _Matriarchat_ and _Patriarchat_; also
HELLWALD, _Die mensch. Familie_, 122-24, who gives
definitions of "marriage" and "family;" and WESTERMARCK,
"Le matriarcat," _Annales_, 115 ff., who shows that in practice
writers have used "matriarchate" in three senses.

[109] _Les origines du mariage_, 302-28.

[110] LIPPERT, _Geschichte der Familie_, 17;
UNGER, _Die Ehe_, 9. See also GUMPLOWICZ,
_Grundriss der Sociologie_, Abschnitt III, who holds that
a period of gynocracy preceded the androcratic stage;
BARAZETTI, in _ZVR._, IX, 304-7. See also GAGE,
_Woman, Church, and State_, 13 ff.

[111] KAUTSKY, "Die Entstehung der Ehe und Familie,"
_Kosmos_, XII, 343, 344.

[112] PESCHEL, _Races of Man_, 233, 234.

[113] TYLOR, _Method of Investigating Institutions_, 252.

[114] LETOURNEAU, in _Annales de l'institut
international_, 155: "Le mot [matriarcat] doit disparaître,
parceque la chose n'a jamais existé."

[115] HELLWALD, _Die mensch. Familie_, 213 ff. But this
author (112 ff., 116) shows that among primitive men the sexes
were not fully differentiated; so that women often possessed
"amazonian" characteristics.

[116] GROSSE, _Die Formen der Familie_, 48, 161 ff., 176
ff., 183. According to Grosse, among the lowest existing races
patriarchalism prevails. Examples of women exercising political
authority in the clan (_Sippe_) are exceedingly rare, although
such may be found occasionally, as among the Huron and Iroquois,
and some other peoples.

[117] KOHLER, "Die Ehe mit und ohne Mundium," _ZVR._,
VI, 328, 329. _Cf._ POWELL, "Wyandot Government," _I.
Rep. of Bureau of Eth._, 59-69.

[118] FRIEDRICHS, "Ueber den Ursprung des Matriarchats,"
_ZVR._, VIII, 381, 382, though he shows elsewhere that paternal
authority may coexist with mother-right: "Familienstufen und
Eheformen," _ibid._, X, 206. _Cf._ MUCKE, _Horde und
Familie_, 108 ff., 114 ff., _passim_, who maintains that the
family, androcratic or gynocratic, originates in slavery through
rape or purchase. In the gynocratic family the woman is owner
and mistress of the man, as the man is lord of the woman in the
androcratic family.

[119] DARGUN, _Mutterrecht und Vaterrecht_, 67-85.

[120] For an example see POWELL, _op. cit._, and his
"Wyandotte Society," _A. A. A. S._, XXIX, 675-88.

[121] For his theory see the _Mutterrecht und Vaterrecht_; and
compare chap. i, pp. 20-23, above.

[122] See POST, _Ursprung des Rechts_, 52-56; _Die
Geschlechtsgenossenschaft_, 94, denying the existence of a period
of gynocracy; also SPENCER, _Principles of Sociology_,
I, 748; PLOSS, _Das Kind_, II, 393; WAKE,
_Marriage and Kinship_, 216-19; LETOURNEAU, _L'évolution
du mariage_, 131.

[123] WESTERMARCK, _Human Marriage_, 41; CURR,
_The Australian Race_, I, 60, 62, 69. DARGUN,
_Mutterrecht und Vaterrecht_, 2 ff., insists that _Mutterrecht_
denotes merely exclusive kinship through the mother and
is entirely consistent with paternal authority. _Cf._
MUCKE, 173 ff.

[124] STARCKE, _op. cit._, 65; _cf. ibid._, 229. Fear
of the blood-feud through the wife's relatives, as among the
Amaxosa, may sometimes act as a check upon the power or brutality
of the husband: REHME, "Das Recht der Amaxosa," _ZVR._,
X, 39, 40.

The theory of original communism has been accepted by many writers,[125] though examples of absolute promiscuity have not been produced.[126] Its former existence is inferred from certain customs and institutions which are believed to be its survivals. Even the promiscuity which is thus assumed is not "perfectly indiscriminate," but restricted to the members of the unorganized horde or tribe occupying a particular locality or roaming about together. Hence, significantly, it has sometimes been described as communal or group "marriage."[127] Accordingly the horde[128] or band becomes the unit or starting-point of social development.

[125] For example, by GIRAUD-TEULON, _Les origines du
mariage_, 70 ff., _passim_; LIPPERT, _Kulturgeschichte
der Menschheit_, II, 7; BERNHÖFT, "Zur Gesch. des
eur. Familienrechts," _ZVR._, VIII, 161 ff.; ENGELS,
_Ursprung der Familie_, 17; KULISCHER, "Die
geschlechtliche Zuchtwahl," _ZFE._, VIII, 140; "Intercommunale
Ehe," _ibid._, X, 193; MORGAN, _Systems of
Consanguinity_, 480, 487 ff.; _Ancient Society_, 418, 500-502,
384 ff.; BASTIAN, _Rechtsverhältnisse_, xviii,
lix; MCLENNAN, _Studies_, I, 92, 95, _passim_;
LUBBOCK, _Origin of Civilization_, 86 ff., 98 ff.;
POST, _Anfänge des Staats- und Rechtsleben_, 19;
_Geschlechtsgenossenschaft_, 16 ff.; _Grundlagen des Rechts_,
182 ff.; _Familienrecht_, 54 ff.; _Ursprung des Rechts_, 46 ff.;
WILKEN, _Das Matriarchat_, 7; GUMPLOWICZ,
_Outlines of Sociology_, 110 ff.; and especially KOHLER,
in _ZVR._, IV, 266, 267; V, 334 ff., and elsewhere throughout his
numerous papers.

[126] Thus GIRAUD-TEULON (_op. cit._, 70), a zealous
advocate of the theory of promiscuity, declares: "Avant
d'accepter une semblable hypothèse, il convient cependant de
reconnaitre que l'on n'a pas encore trouvé de peuplade vivant
actuellement en état de complète promiscuité." But, he adds,
the facts observed among living tribes "sont en tel nombre, en
telle concordance, et confinent de si près à la promiscuité
absolue, que ce n'est pas sortir du champ des _hypothèses
scientifiquement permises_ que de supposer dans l'enfance de
l'humanité un état de pur communisme." On the lack of positive
proof _cf._ also KAUTSKY, "Die Entstehung der Ehe und
Familie," _Kosmos_, XII, 198 ff.; WESTERMARCK, _Human
Marriage_, 41; MORGAN, _Ancient Society_, 500 ff.;
MCLENNAN, _Studies in Ancient History_, I, 85 ff., 93
ff.; SPENCER, _Principles of Sociology_, I, 662, 664;
HELLWALD, _Die mensch. Familie_, 130, 131.

[127] "Communal marriage" is the name introduced by SIR JOHN
LUBBOCK, _Origin of Civilization_, 86, 98, 103, 104-9, whose
theory is criticised by MCLENNAN, _Studies_, I, 329 ff.
"Gruppen- oder Hordenchen" is the term employed by POST,
_Familienrecht_, 57, 58; _Grundlagen des Rechts_, 200, 201;
_Anfänge_, 10 ff. For the so-called Australian group-marriage
see FISON AND HOWITT, _Kamilaroi and Kurnai_, 50 ff.,
99 ff., 159 ff.; the criticism of CURR, _The Australian
Race_, I, 106-42, which should be compared with KOHLER,
"Das Recht der Australneger," _ZVR._, VII, 326 ff., 329 ff.,
337 ff.; his _Zur Geschichte der Ehe_, 64 ff.; CUNOW,
_Australneger_; SPENCER AND GILLEN, _Native Tribes of
Central Australia_; and CRAWLEY, _Mystic Rose_, 475
ff. In general, on group-marriage see KULISCHER, in
_ZFE._, VIII, 140; X, 193; BERNHÖFT, "Altindisches
Familienorganisation," _ibid._, IX, 5 ff.; SCHROEDER,
_Das Recht in der geschlechtlichen Ordnung_, 19 ff.

[128] On the horde see BERNHÖFT, "Zur Gesch. des eur.
Familienrechts," _ZVR._, VIII, 167; WESTERMARCK,
_Human Marriage_, 41, 52; FRIEDRICHS, "Familienstufen
und Eheformen," _ZVR._, X, 194, 197, 198; _idem_, _ibid._,
VIII, 378, 379; KAUTSKY, "Die Entstehung der Ehe und
Familie," _Kosmos_, XII, 193 ff. (the _Stamm_); POST,
_Geschlechtsgenossenschaft_, 4 ff.; _Familienrecht_, 57, 58;
KOHLER, in _ZVR._, VII, 381; MUCKE, _Horde
und Familie_; GROSSE, _Die Formen der Ehe_, 59, 62;
FRERICHS, _Zur Naturgeschichte des Menschen_, 106,
107; HELLWALD, _Die mensch. Familie_, 121 ff., 153;
GUMPLOWICZ, _Outlines of Sociology_, 110 ff.; and the
literature cited below on the Australian class-systems, and on
the works of MORGAN and SPENCER.

Many evidences of the former universality of promiscuity are brought forward. This evidence--to adopt Westermarck's convenient analysis--"flows from two sources. First, there are, in the books of ancient writers and modern travelers, notices of some savage nations said to live promiscuously; secondly, there are some remarkable customs which are assumed to be social survivals, pointing to an earlier stage of civilization when marriage did not exist."[129] The mass of facts collected to illustrate the licentiousness of savage and barbarous tribes cannot here be dwelt upon.[130] It must suffice for the present to note that, according to recent investigation, every instance of alleged indiscriminate sexual relations appears to stop far short of absolute promiscuity.[131] So also several of the more interesting customs, regarded as direct survivals of communism, require only to be briefly mentioned. The principal argument, of course, as will presently appear, is grounded upon the existence of polyandry, and especially upon the proofs adduced of the wide prevalence of kinship reckoned through the mother's line. For it is generally assumed that this system can arise only when paternity is uncertain. Legalized hetairism or prostitution,[132] practiced under various forms and restrictions among many peoples, savage, barbarous, and civilized, is thought to be a proof of original communism.[133] The same is true of "proof-marriages,"[134] existing among the Wotjäken, Burmese, the Germans, in Loango, and elsewhere; of "temporary" marriages,[135] as among the Parthians and American Indians; and of "wife-lending," examples of which are afforded by the Spartans, Romans, Hindus, Arabs, Eskimo, Germans, Wotjäken, and many other peoples.[136] In this connection, likewise, belong those "scandalous nuptial rites" which Bachofen, Lubbock, and Giraud-Teulon regard as acts of "expiation" for marriage. According to this theory, marriage, the individual possession of a woman, was originally regarded as a violation of communal right, for which some compensation or expiation must be rendered.[137] The customs referred to fall for the most part in two general classes. The first group comprises the lascivious religious rites, the so-called sacred or temple prostitution, found in connection with the worship of various deities of love and procreation, such as the Babylonian Mylitta, the Hellenic Aphrodite, the Italian Venus and the Carthaginian Moloch.[138] In the second class fall the revolting nuptial privileges, accorded in many parts of the world to priest, chieftain, or king, or to the friends of the bridegroom and sometimes to those of the bride. To these privileges in general the name of _jus primae noctis_ has been given.[139] A curious example of this practice among the American aborigines is communicated by Castañeda.[140]

[129] WESTERMARCK, _op. cit._, 52.

[130] For this class of evidence, see GIRAUD-TEULON,
_Les origines du mariage_, 1 ff.: POST, _Familienrecht_,
57, 58; _Anfänge_, 17 ff.; LUBBOCK, _Origin of
Civilization_, 69 ff., 104 ff.; BERNHÖFT, "Zur
Geschichte des eur. Familienrechts," _ZVR._, VIII, 161 ff.;
MCLENNAN, _Studies_, I, 83 ff.; MORGAN,
_Ancient Society_, 500 ff., _passim_; LIPPERT,
_Geschichte der Familie_, 168-80; PLOSS, _Das Weib_,
I, 331, 360 ff., 370 ff., 383 ff.; KULISCHER,
"Die geschlechtliche Zuchtwahl," _ZFE._, VIII, 140, 141;
FRIEDRICHS, "Ursprung des Matriarchats," _ZVR._,
VIII, 370 ff.; MUCKE, _Horde und Familie_, 65, 138
ff., who deny that these customs are evidences of promiscuity;
as also does SCHMIDT, _Jus primae noctis_, 36 ff.;
KOHLER, "Ueber das Negerrecht, namentlich in Kamerun,"
_ZVR._, XI, 419, 422; "Studien über Frauengemeinschaft," _ibid._,
V, 334 ff.; _Zur Urgeschichte der Ehe_, 14, 64 ff., 146; and
elsewhere in his various monographs; HELLWALD, _Die
mensch. Familie_, 187, 326-29; KOVALEVSKY, _Mod.
Customs and Anc. Laws of Russia_, 6 ff.; SCHNEIDER,
_Die Naturvölker_, I, 267 ff.; II, 413 ff., who, rejecting the
doctrines of evolution and survival, holds to the biblical legend
of the "fall of man."

[131] The result of the recent researches of Spencer, Starcke,
Westermarck, Letourneau, and others will be discussed in the next
chapter.

[132] Read especially the section of BERNHÖFT, "Zur
Geschichte des eur. Familienrechts," 161-221, on "Askese
und Hetärismus," who is criticised by MUCKE,
_Horde und Familie_, 122; GUYOT, _Prostitution_,
12 ff.; MANTEGAZZA, _Geschlechtsverhältnisse des
Menschen_, 366 ff.; and the detailed and learned monograph of
ROSENBAUM, _Geschichte der Lustseuche im Alterthume_
(Halle, 1893). An examination of the whole subject is given by
WESTERMARCK, _Human Marriage_, chap. iv.

[133] In this connection are adduced the cases in which
courtesans have been held in high esteem, sometimes in
higher regard than married women, as in Athens and India:
GIRAUD-TEULON, _Les origines du mariage_, 43-45;
LUBBOCK, _Origin of Civilization_, 132, 133, 537, 538;
POST, _Geschlechtsgenoss._, 31; SCHROEDER,
_Das Recht in der geschlechtlichen Ordnung_, 244 ff.;
BERNHÖFT, "Zur Gesch. des eur. Familienrechts,"
_ZVR._, VIII, 172-74; KOHLER, "Ueber das Negerrecht,"
_ibid._, XI, 419; WESTERMARCK, _op. cit._, 61 ff.,
80, 81, who denies the inference of promiscuity from this
custom and mentions many low tribes among whom chastity is
observed. _Cf._ FRIEDRICHS, in _ZVR._, VIII, 374 ff.;
SCHNEIDER, _Die Naturvölker_, II, 473, 474, who ascribes
the custom to religious impulse--the consecration of virgins to
the cult of Aphrodite.

The custom, found among Egyptians, Tibetans, Wotjäken, American
Indians, and other peoples, permitting girls freely to prostitute
themselves before marriage is similarly put in evidence:
HERODOTUS, II, 121, 124, 125, 126; IV, 176; V, 6;
POST, _Grundlagen_, 187; _Geschlechtsgenoss._, 29-31;
_Familienrecht_, 346; BUCH, _Die Wotjäken_, 45 ff.;
KOHLER, in _ZVR._, V, 335 (Wotjäken); BERNHÖFT,
_op. cit._, 165, 166; GIRAUD-TEULON, _op. cit._, 52,
53; UNGER, _Die Ehe_, 12, 13; HELLWALD, _Die
mensch. Familie_, 220 ff., 343; WAITZ, _Anthropologie_,
II, 112, 113 (Africa); RATZEL, _Hist. of Mankind_, II,
128 (Brazil and ancient Peru); PRATZ, _Hist. de la
Louisiane_, II, 386 (Natches Indians); STEVENSON, in
_XI. Rep. of Bureau of Eth._, 19, 20 (the Sia); TURNER,
_ibid._ XI, 189 (the Innuit).

[134] On the so-called "Probeehen" or "Probenächte," see
BUCH, _Die Wotjäken_, 50, 51, 53, 57; KOHLER,
in _ZVR._, V, 346, 351, 338, 339; POST, _Anfänge_, 21;
DÜRINGSFELD, _Hochzeitsbuch_, 9; SCHMIDT,
_Jus primae noctis_, 40; WEINHOLD, _Deutsche Frauen_,
I, 261 ff.; FRIEDBERG, _Eheschliessung_, 84; and
especially FISCHER, _Ueber die Probenächte der teutschen
Bauernmädchen_, who gives a detailed historical investigation
from the early Middle Ages onward, with interesting examples.
_Cf._ KOVALEVSKY, _Mod. Customs and Anc. Laws of
Russia_, 12, 13 (the _Kirchgang_ or _Dorfgehen_ of Switzerland,
Baden, and Würtemberg).

Among the Todas, after a marriage is arranged, the bride has a
proof-time of a night and a day. On the "expiry of this brief
honeymoon," the damsel is required to make up her mind "either to
accept or reject her suitor."--MARSHALL, _A Phrenologist
amongst the Todas_, 212.

[135] STRABO, II, 515; LUBBOCK, _op. cit._,
131; GIRAUD-TEULON, _op. cit._, 3; POST,
_Geschlechtsgenoss._, 29, 43 ff; _Anfänge_, 21; especially
HELLWALD'S chapter entitled "Zeitehen und wilde
Ehen," _Die mensch. Familie_, 438 ff.; and KULISCHER,
"Communale Zeitehen," _Archiv für Anthropologie_, XI, 228 ff.;
WAITZ, _Anthropologie_, III, 105 (proof and temporary
marriages among American Indians); II, 114 (same in Africa);
KLEMM, _Kulturgeschichte_, II, 78 (N. A. Indians);
TURNER, in XI. _Rep. of Bureau of Eth._, 189 (Innuit);
MCGEE, _The Seri Indians_, in _XVII. Rep. of Bureau of
Eth._, Part I, 280.

[136] PLUTARCH, _Lycurgus_, c. 15 (Sparta);
FRIEDRICHS, "Ursprung des Matriarchats," _ZVR._, VIII,
372, 373; POST, _Anfänge_, 25; _Geschlechtsg._, 34
ff.; NADAILLAC, _L'évolution du mariage_, 17 ff.;
LUBBOCK, _Origin of Civilization_, 131, 132, who
mentions the well-known case of Cato's lending his wife Marcia
to his friend Hortensius; BUCH, _Die Wotjäken_,
48; KOHLER, in _ZVR._, III, 398, note (India), 399
(Germans); V, 336 (Wotjäken), 342 (Alaska), 353 (Creeks);
VII, 326 (Australia); VIII, 84 (Birma); XI, 422 (Kamerun);
JOLLY, in _ZVR._, IV, 331, 332 (Hindus); SMITH,
_Kinship and Marriage_, 116; WAITZ, _Anthropologie_,
II, 114 (Africa); NELSON, "The Eskimo about Bering
Strait," in _XVIII. Rep. of Bureau of Eth._, Part I, 292;
MCGEE, in _XV. Rep. of Bureau of Eth._, 178 (Sioux);
WESTERMARCK, _op. cit._, 74 n. 1, mentions, with the
sources of information, many tribes among whom wife-lending
prevails.

"Exchange of wives" is common among the Eskimo. "For instance,
one man of our acquaintance planned to go to the rivers deer
hunting in the summer of 1882, and borrowed his cousin's wife
for the expedition, as she was a good shot and a good hand at
deer hunting, while his own wife went with his cousin on the
trading expedition to the eastward. On their return the wives
went back to their respective husbands." Sometimes in such cases
the women are better pleased with their new mates and remain with
them. "According to GILDER (_Schwatka's Search_, 197)
it is a usual thing among friends in that region to exchange
wives for a week or two almost every two months." EGEDE
(_Greenland_, 139) says such temporary exchanges take place at
festivals. So also at Repulse Bay, at certain times there is said
to be a "general exchange of wives throughout the village, each
woman passing from man to man till she has been through the hands
of all, and finally returned to her husband."--MURDOCH,
"Point Barrow Expedition," _IX. Rep. of Bureau of Eth._, 413.
_Cf._ TURNER, "Ethnology of Ungava Dist.," _ibid._, 189.
The loaning of wife or daughter to a guest, or the prostitution
of the wife for hire, appears among some South American
tribes: MARTIUS, _Ethnographie_, I, 118; _idem_,
_Rechtszustande_, 65.

[137] LUBBOCK, _Origin of Civilization_, 130-32, 536
ff.; GIRAUD-TEULON, _Les origines du mariage_, 5 ff.,
who says: "Le mariage (en prenant ce mot dans son sense étroit)
apparaît chez les races inférieures comme une infraction aux
droits de la communauté, et partant, comme la violation d'une
loi naturelle: de là, à le considérer comme la violation d'une
loi religieuse, il n'y avait qu'un pas." See the criticism by
MCLENNAN, _Studies_, I, 335 ff., who rejects the theory
of expiation for violation of communal right; because usually
the woman does not belong to the husband's tribe, and because
often the privileges are exercised by friends of both bridegroom
and bride. _Cf._ FISON AND HOWITT, _Kamilaroi and
Kurnai_, 149-56; WAKE, _Marriage and Kinship_, 17, 34,
65, 245 ff.; LIPPERT, _Geschichte der Familie_, 169;
KOHLER, in _ZVR._, VII, 327 (Australia); MUCKE,
_Horde und Familie_, 138-40, who rejects the theory; and
KOVALEVSKY, _Mod. Customs and Anc. Laws of Russia_,
10, 11, who refers to the promiscuous intercourse practiced at
various festivals, resembling the assemblies on the Roumanian
Gainaberg which Kohler has discussed in _ZVR._, VI, 398 ff. These
may be compared with the license practiced at certain gatherings
among the Arunta and several other Australian tribes: SPENCER
AND GILLEN, _Native Tribes of Central Australia_, 96 ff.

[138] "Thus Herodotus states, in Babylonia, every woman
was obliged once in her life to give herself up, in the
temple of Mylitta, to strangers, for the satisfaction of the
goddess; and in some parts of Cyprus, he tells us, the same
custom prevailed. In Armenia, according to Strabo, there
was a very similar law. The daughters of good families were
consecrated to Anaitis, a phallic divinity like Mylitta, giving
themselves, as it appears, to the worship of the goddess
indiscriminately."--WESTERMARCK, _Human Marriage_,
72; HERODOTUS, I, c. 199; STRABO, XI, 532.
As to Babylon Herodotus may have been mistaken; _cf._ chap.
iv, below. See further illustrations in BERNHÖFT,
_op. cit._, 169 ff.; GIRAUD-TEULON, _op. cit._, 7
ff.; PLOSS, _Das Weib_, I, 383 ff.; LIPPERT,
_Geschichte der Familie_, 171; FRIEDRICHS, in _ZVR._,
VIII, 373, who enumerates the peoples where the custom has
existed; _idem_, _ibid._, X, 215, 216; HELLWALD, _Die
mensch. Familie_, 356 ff.; and HOWARD, _Sex Worship_,
103-16, 201, _passim_, who holds that sacred prostitution, and
many of the other sexual practices usually assigned as survivals
of promiscuity, are evidences of phallicism.

[139] The monograph of DR. KARL SCHMIDT, _Jus primae
noctis_, is the most elaborate work on the subject. The author
denies (41 ff., 365 ff., 379) that the custom existed in
feudal Europe or elsewhere as a _right_; and he holds that
the practices so called are not evidences of promiscuity.
His views are sharply criticised by HELLWALD, _Die
mensch. Familie_, 349 n. 4; and especially by KOHLER,
in _ZVR._, IV, 279-87. SCHMIDT has a supplementary
discussion in _ZFE._, XVI, 44 ff.; and is reviewed unfavorably by
KOHLER, _ZVR._, V, 397-406. See also SCHMIDT'S
_Slavische Geschichtsquellen zur Streitfrage über das Jus
Primae Noctis_; KOHLER, _Urgeschichte der Ehe_, 140;
_idem_, in _ZVR._, VII, 350, 351; VIII, 85; SCHNEIDER,
_Die Naturvölker_, II, 471-73; GIRAUD-TEULON, _op.
cit._, 32-41; WEINHOLD, _Die deutschen Frauen_, I,
300, 301; LETOURNEAU, _L'évolution du mariage_,
56-62; SUGGENHEIM, _Geschichte der Aufhebung der
Leibeigenschaft_, 104, who believes the "right of the
lord" existed in France far down into the Middle Ages;
BACHOFEN, _Mutterrecht_, 12, 13, 17, 18, _passim_;
POST, _Anfänge_, 17, 18; _idem_, _Geschlechtsgenoss._,
37; KULISCHER, "Die communale Zeitehe," in _Archiv für
Anthropologie_, XI, 228 ff., who refers to the recent existence
of the alleged custom in Russia; FRIEDRICHS, in _ZVR._,
X, 214, 215; STARCKE, _op. cit._, 124-26. There is a
learned discussion in the quaint _De uxore theotisca_, cap. i,
of GRUPEN; the literature cited in Bibliographical
Note II should be consulted; and Schmidt has appended a very
full bibliography to his book. The term _jus primae noctis_ is
especially applied to the alleged "right of the lord" in feudal
times; but the existence of even this custom as a legal privilege
is still an unsettled question.

[140] The custom is for the men "to buy the women whom they
marry of their fathers and relatives at a high price, and then
to take them to a chief, who is considered to be a priest, to
deflower them and see if she is a virgin; and if she is not,
they have to return the whole price, and he can keep her for
his wife or not, or let her be consecrated, as he chooses."
In the same connection, Castañeda says, "among them are men
dressed like women who marry other men and serve as their wives;"
and he describes also a curious kind of legal or consecrated
prostitution existing among the same people: see the translation
of Castañeda's account in WINSHIP'S "Coronado
Expedition, 1540-2," _XIV. Rep. of Bureau of Eth._, 513, 514.
_Cf._ FAWCETT, "On Basivis: Women, Who, through
Dedication to a Deity, Assume Masculine Privileges," _Jour. Anth.
Soc._ (Bombay), II (1891), 322-54.

The argument for original promiscuity based on the various practices just mentioned is not conclusive. Most, if not all, of them are perhaps capable of other and simpler explanations. The wife-lending, as suggested by Westermarck, may be "due merely to savage ideas of hospitality;"[141] while the custom of sacred prostitution evidently belongs "to phallic-worship, and occurred, as Mr. McLennan justly remarks, among peoples who had advanced far beyond the primitive state. The farther back we go, the less we find of such customs in India; 'the germ only of phallic-worship shows itself in the Vedas, and the gross luxuriance of licentiousness, of which the cases referred to are examples, is of later growth.'"[142] So likewise the _jus primae noctis_, instead of being an expiation for an encroachment on communal right, may be more naturally explained either as an abuse of power,[143] in some cases as an evidence of hospitality,[144] or in others as a "common war-right, exercised whenever, under any circumstances, capture of a woman is made by a war-party."[145] The toleration of the custom, like that of wife-lending, may sometimes be due to the "juridical" nature of fatherhood as conceived by primitive men.[146]

[141] WESTERMARCK, _Human Marriage_, 73, 74;
WAKE, _Marriage and Kinship_, 81, 82. The custom may
possibly be accounted for by the slow growth of the sentiment
upon which "conjugal attachment depends:" MCLENNAN,
_Studies_, I, 341. For an alleged "survival" see
SCHMIDT, _Hochzeiten in Thüringen_, 31. For the strictly
regulated form of wife-lending among certain Australian tribes
see the reference to the work of Spencer and Gillen below.

[142] WESTERMARCK, _op. cit._, 72; MCLENNAN,
_Studies_, I, 341, 342. This is also the view of CLIFFORD
HOWARD in his _Sex Worship_, chaps. v, ix, x.

[143] WESTERMARCK, _op. cit._, 78; SCHMIDT,
_Jus primae noctis_, 41.

[144] WESTERMARCK, _op. cit._, 73.

[145] MCLENNAN, _op. cit._, I, 337;
WESTERMARCK, _op. cit._, 76.

[146] The well-known theory of STARCKE, _op. cit._,
121-27. It is not essential, according to this view, in early
stages of development, that a child should be actually begotten
by the father. It is enough that it should be borne by his
legal wife and be accepted by him. Hence the _jus primae
noctis_, exercised by a priest, king, or other distinguished
person, is sometimes regarded as an honor: _ibid._, 125, 126;
WESTERMARCK, _op. cit._, 79.

On the other hand, the theory that these customs are evidences of original sexual communism has gained support from the recent researches of Spencer and Gillen in their very able and detailed book on the _Native Tribes of Central Australia_. Among these aborigines, the authors declare, "so far as marital relations ... are concerned, we find that whilst there is individual marriage, there are, in actual practice, occasions on which the relations are of a much wider nature. We have, indeed, in this respect three very distinct series of relationships." First we find the present "normal condition of individual marriage with the occasional existence of marital relations between the individual wife and other men of the same group as that to which her husband belongs, and the occasional existence also of still wider marital relations;" secondly "we have evidence of the existence at a prior time of actual group marriage;" and in the third place "we have evidence of the existence at a still earlier time of still wider marital relations."[147]