But the patriarchal theory, strictly considered, fares little better than the maternal at the hands of recent investigators. Leist, who has been able with wonderful completeness to reconstruct the juridical life of the early household, though largely on the basis of old Indic sources, declares positively that "the Aryan people has not within itself a single element of patriarchalism."[58] This statement, as Bernhöft observes,[59] is perhaps too sweeping, even when tested by the results of Leist's own researches; but the patriarchal family of Sir Henry Maine does not appear. The evolution of juridical conceptions among the old Aryans, according to Leist, presents two general phases. First is the rita stage, or period of fixed, divinely appointed order, of natural law, corresponding to the Greek cosmos or phusis and the Latin ratum or ratio naturalis. In this "natural history" or pantheistic stage there is at first little idea of law as something to be separately contemplated. Under rita is comprehended the unchangeable order observable in the material world as well as in the physical and social life of man; but the universe and the creative energy, the All and Varuna, are identified or blended in thought.[60] Only slowly are these concepts differentiated and the immutable order of nature becomes looked upon as dhama, or a holy ordinance established by Varuna, who now appears as a protecting and creative spirit.
Dhama thus forms a means of transition to the second juridical phase, that of dharma, or divine law, corresponding to the Greek themis and the Latin fas.[61] In the dharma period, law is regarded as inspired by the gods, whose earthly agent, the priest or hero-king, is intrusted with its application; and in it the rules governing civil and public conduct, according to modern conceptions, are not distinguished from those relating to manners, morality, or religion. When history dawns, our early Aryan ancestors had already entered the dharma phase of evolution; and even now the Hindus have scarcely gained the third phase, prevailing in the civilized West, in which the element of "civil law" is separate from all other ingredients.[62]
Of the family relations of our primitive ancestors in the rita period we know little, except through inference or analogy. The so-called "natural forms" of marriage by purchase and capture were doubtless practiced, but probably not exclusively; and these customs were handed down to the second period, though they were modified to bring them into harmony with the higher ethical and social ideas which had then gained predominance.[63] Whether or not the absolute power of the father and the strict rule of agnation prevailed it would be as difficult to affirm as to deny.[64] In the dharma period the ancient rita conception of marriage as an ordinance of nature, whose real purpose is to provide posterity, is still retained; but it gains a social character.[65] The central principle of the Aryan household is the Hestia-Vesta cult, or the worship of the sacred hearth. To gain the protection of the ancestral gods the hearth-fire must be kept always burning; and the care of the family sacra is the special function of the house-father, who is lord and priest of the family. But the house-mother holds a worthy position in the domestic worship. From the first kindling of the hearth-fire at the nuptials, she appears as co-priestess and helper of her husband in the sacred rites. The whole life-partnership of the wedded pair is shaped and dominated by lofty religious motives. The Aryan housewife is not the chattel of her husband; she is a free woman and shares in his highest sacred functions. The primary purpose of the union is the birth of a legitimate son to perpetuate the paternal line and to foster the ancestral cult.[66] So paramount is this motive that, in case no son is born in wedlock, resort may be had to adoption, or to analogous expedients for the fictitious extension of fatherhood. For among the Aryans, as Maine suggests, the fiction of adoption is of the highest legal importance; and, indeed, very widely among the races of mankind it has served a useful purpose in social progress.[67] Here also the Aryan wife appears as co-priestess with her husband. Each is regarded as having a share in the begetting of the child, and they unite in giving the son in adoption to another household.[68] Accordingly the wife is not the mere chattel of her husband, who owns the children by virtue of his proprietorship in the mother.[69] The house-father appears in the sacred books as lord of the wife, who owes him reverence and obedience; yet she is not reduced to patriarchal slavery. With the husband she exercises joint control over the sons; and these are released entirely from parental authority when they marry and establish new households.[70] The male line takes legal precedence; but the maternal kindred are clearly recognized in a way wholly inconsistent with strict agnation.[71] According to the primitive Indic conception the wife is regarded as incapable of property. Neither the widow nor the daughters could inherit, the estate passing to the sons as in theory a means of providing for the sacra of the deceased house-father. Still the bride possessed her personal belongings—her couch, clothing, and ornaments; and from this germ gradually arose, beginning even in remote antiquity, her existing rights of property and inheritance.[72] In short, the old Aryan household reveals but the elements of agnation and the potestas as they appear in the Roman law.[73]
This conclusion is confirmed by the customs of the Aryan peoples after the separation. Among the Hellenes at the first dawn of history the family appears as a member of the gens, which is held together usually by the ties of blood-relationship. The house-father is lord or monarch of the family. But his authority is tempered in various ways. Originally, as among the primitive Aryans, he may have exercised the power of life and death over his children; but in no case could he "put a child to death without the consent of the collective ancestors," or near kindred.[74] By the Aryans the jus vitae necisque was never looked upon as an arbitrary right of destruction, but merely as a means of domestic discipline.[75] The Greek father might sell his minor sons and unmarried daughters; but "it appears that, even here, merely the labor of the youth and not the person itself was disposed of by sale," and the custom was controlled by the usage of the gens.[76] The wife, as among the Hindus, holds a dignified position in the household. She is her husband's partner in the domestic economy and the sacred rites. Equally with him she is "the cause of the son's existence," and in consequence exercises over him conjointly with the father the powers of sale and life and death.[77] Thus Hellenic custom preserves the essential element of the Aryan paternal authority, which signifies a protecting, not an arbitrary or ruthlessly destructive, power. Among the historic Greeks the agnatic principle finds expression especially in the right of guardianship, which is transmitted in the paternal line. Such is the judgment of Leist, whose masterly account of the development of the Aryan agnatic conception proves that here as elsewhere the Roman and the Greek stood upon common ground.[78] The point of divergence is the lifelong continuance of the Roman potestas; whereas in Hellas the son was emancipated at maturity.[79]
Examination of the customs of the Celts,[80] the Slavonians,[81] and ancient Germans[82] leads to a like result. Accordingly we are forced to admit the accuracy of Gaius's conclusion. Writing in the time of the Antonines, he declares his belief that the patria potestas is peculiarly a Roman institution. Only among the Asiatic Galatæ had he observed a similar authority exercised by the father over his children.[83] Instead of existing "almost everywhere," often preserving as in a mold the imprint of the paternal power which it has outlived and upon which it is thought always to depend, among Aryan peoples agnation is found together with the potestas only in one instance, that of the Roman law; and even in this case it was virtually the first to expire.[84] For, as is well known to the student of Roman jurisprudence, strict agnation, as determining right of succession, disappeared under the influence of the edict and imperial statutes long before the last vestige of the real patria potestas was swept away by the legislation of Justinian.[85]
Furthermore, in addition to the historical difficulty, there is another strong reason for doubting the dependence of agnation upon patria potestas: the inconsistency of the latter in its effects upon kinship. If the descendants of married women are excluded from relationship, solely on the ground that they belong to another potestas, why, for the same reason, should not the children of men, say of brothers sui juris,[86] be likewise mutually excluded? Plainly some more satisfactory explanation of this remarkable discrimination between the sexes must exist. Such an explanation McLennan finds in exogamy, or the custom which forbids marriage between persons of the same group of acknowledged kindred.[87] It seems probable that in early times the patrician family was coextensive with the gens. Agnatio and gentilitas were equivalent expressions.[88] During the historical period, at any rate, gentilitas is traced through the male line; and it is not impossible that originally inter-marriage was forbidden between those bearing the same gentile name.[89] In that case, agnation appears as the natural result of the gentile rule of exogamy, retained, after the weakening of the gens, for the regulation of succession within the family. Exogamy, however, does not necessarily imply the patria potestas, but is found more frequently perhaps with the maternal than with the paternal system of kinship.[90] In fact, for the Romans and kindred Italic tribes, considerable evidence has been collected by various writers pointing, as they believe, to an early transition from the maternal to the cognatic or the agnatic system.[91] While this conclusion may be rejected, it must nevertheless be admitted that criticism of the patriarchal theory has been very successful in its general results. It appears to have established beyond question the complex and highly artificial character of the Roman family.[92] So far from being the type of early social organization, it is seen to be relatively modern and ill fitted to the condition of primitive men.
In the meantime, the patriarchal theory has had to reckon with a totally different view of the genesis and development of social institutions. To this view let us now turn.
[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.]
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.
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]
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]
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]
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.
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.
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]
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]
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]
But these usages are capable of a very different explanation. That they imply a primitive state of promiscuity is emphatically denied by Crawley. Like sacred prostitution, the customs of avoidance, the couvade, and marriage rites in general, according to his theory, they take their rise in the religious or superstitious ideas upon which sexual taboo rests.[148]
Adherents of the communistic theory are not entirely at one as to the phases in the development of marriage and the family. Very generally the family, regarded from the standpoint of authority and kinship, is said to pass from the unregulated horde through the maternal and the paternal to the parental or two-sided stage.[149] Thus Dargun declares that there is a tendency for the uterine system of kinship to give place to the paternal, but never the reverse.[150] Kohler takes the same position.[151] Lippert regards the history of social culture as beginning with the natural relation of mother and child, producing in course of evolution, long before "marriage" arose, the "primitive family" whose principle is mother-right, and which, in turn, under various influences, generally yields to the "old family" (Altfamilie) in its origin based, not on relationship, but on patriarchal power and possession.[152] Bernhöft denies the invariable sequence of mother-right and father-right;[153] and Kautsky maintains that the two systems are parallel, not successive, developments from the hetairism of the primitive horde.[154]
Marriage also, like the family, is said to pass through several distinct phases of development. Thus, with respect to the number of persons joining in a household, Friedrichs distinguishes four "forms" of marriage which, with equal propriety, may be called forms of the family. These are group-marriage, polyandry, polygyny, and monogamy, the first three forms having several varieties.[155] But, as will hereafter appear,[156] it would be rash to infer that these forms necessarily arise in the order named. Again, with regard to the way in which it originates, marriage presents a number of successive stages. According to Kohler,[157] these are marriage by capture, marriage by purchase, religious marriage, and civil marriage. That wife-capture generally gives place to wife-purchase, and this in turn to marriage by gift, and then to the modern contract between the parents, or later between the parties themselves, is especially insisted upon. Hildebrand,[158] however, reverses this order. A measure of progress he finds in what he regards as the three great industrial stages of human culture: those of the chase, pastoral life, and agriculture. In the first stage, not communism, but a tendency toward monogamy prevails. There is little notion of private property; hence covetousness is not a motive of social action. Marriages are freely formed through presents given to the parents, or even without them by simple agreement of the parties. Later, with the rise of private property, marriage by purchase and marriage by capture come into existence; though capture is always exceptional and of comparatively little importance in the history of marriage.
Similar to the view of Hildebrand, in respect to the initial stage, is the theory of Kautsky.[159] The starting-point is the horde. In this absolute equality of the sexes prevails; and the only divisions are the different generations. Neither the maternal nor the paternal line is recognized, for the children belong to the group. Not promiscuity, but "hetairism,"[160] or rather "hetairistic monogamy," exists. Incessant feuds, however, lead to wife-capture; and wife-capture tends directly to communism, for the captured woman belongs as a slave to the band. But the rights of the band may pass to the individual. The free native woman is "wooed;" the war-captive is "fought-for;" and so she becomes the slave-wife of the strongest, who may win other wives in the same way. Marriage by capture thus conquers the original monogamy, in whose place polygyny appears, either at once, or after a transition-period of community in women. Moreover, in this process may be discerned the genesis of modern individual marriage under the sanction of the law. But the consequences of wife-capture are not yet exhausted. The presence in the horde of women taken from several neighboring bands leads at once to the formation of clans and to the matriarchate; for the connection of children with the clan is naturally determined by the mother. The development of private property produces still further results. The individual may buy his wife. She becomes his chattel; and the offspring also belong to him. Thus marriage by purchase gains the victory over wife-capture; and the patriarchate triumphs over mother-right. This is the order of development in the more war-like hordes. But wife-capture does not always precede wife-purchase as a general phase. In the more peaceful and industrious groups wife-capture does not appear at all. Here hetairistic monogamy runs its natural course. Partly under the external influence of tribes where mother-right existed as the result of wife-capture, but mainly under the powerful influence of private property, the matriarchate arose. In the earlier stage kinship with the father was disregarded or unknown. Naturally, therefore, under the new condition, name and also property were transmitted to the children through the mother, with whom their physical connection was always manifest. So it appears that the conception of private property is the basis of "hetairistic mother-right" as it is of father-right; and hetairistic mother-right, as distinguished from the mother-right which owes its origin to wife-capture, implies the precedence of woman in the family.[161] "Gynocracy and patriarchalism are therefore parallel branches of the same stem," the original hetairism of the horde: the one cannot be a further development of the other. Gynocracy, and with it polyandry, which is its result,[162] is the highest stage in the evolution of hetairistic mother-right; just as polygyny and the patriarchal family are the highest stage in the evolution of father-right or the agnatic system of kinship.[163]
To the theory of Kautsky that of Dargun, already explained, bears some resemblance in important details. But Dargun rejects Kautsky's idea of original monogamy; and he does not regard wife-purchase as the necessary source of the patriarchate, though the rise of the latter was greatly favored by it; while mother-right is especially due to the uncertainty of fatherhood.[164]
Hellwald—who in the general development of his subject and in many essential particulars agrees closely with Lippert[165]—seeks the elements of human sexual relations in those of the lower animals. Absolute promiscuity has never existed among men. The hetairism which prevailed was restricted to the immediate band or horde of kindred, which was probably never large. Thus in the horde there was "unregulated polygyny." To the earliest sexual relations[166] of men neither "marriage" nor "family" may properly be applied; and for them no suitable name is forthcoming. In the horde the first social institution evolved was the "mother-group" or rudimentary primitive family (Urfamilie). "Mother and child," as Lippert suggests, "these were the simplest elements of the oldest organization." For the "relation of mother and child alone is given by nature."[167] In the form of the mother-group the family, however imperfectly constituted, precedes the state in the order of growth; although it is not until society, the state, has gained permanent form that from it the historical "family" is developed.[168] Indeed, the mother-group is "lacking in everything" which distinguishes the family according to our modern conceptions.[169] The history of the "primitive family," so far as mother-right is concerned, shows two stages of evolution. The first stage is that of the mother-group strictly so called, through which, as Bachofen and Dargun declare, every race passes and in which all relationship is traced through the mother's blood.[170] Absolute unity or identity of blood is the basis of the earliest human conception of relationship. Generations or stages of seniority alone (Altersstufen), not degrees of kinship, are recognized. Members of the group are of equal blood, "consanguine."[171] Relationship with the father is as yet unknown; and there is in the outset no conception of property. Gradually, however, in the endogamous mother-group a horror of incest, of inbreeding, arises, thus leading to exogamy, which is often facilitated by the stealing of women from surrounding groups. The obtaining of foreign women next produces the clan system. Private property in land and movables arises, especially among those peoples which have attained to settled life and a knowledge of agriculture. In this way the "primitive family" enters upon its second stage—that of the matriarchate. Here we find for the first time forms of marriage and the family properly so called, although rudimentary as compared with the modern institutions. The mother ceases to be merely the center of the common life; she is now the social axis around which everything revolves. Mother-right, implying kinship as well as succession to name and property exclusively in the maternal line, becomes fully established. The matriarchate, unlike the simple mother-group, is not a universal phase through which all mankind has run. In some cases the agnatic system or father-right may have followed immediately upon the earlier stage of mother-right. Incident to the matriarchate are the polygynous and polyandrous forms of the family. With these the institution of property grew apace; and so we reach the paternal system, whose triumph is powerfully aided by wife-capture. In this stage, whatever be the form of social union—whether it be called gens, sippe, or joint-family—it rests upon the authority of the father or patriarchal lord. Following Lippert,[172] the author prefers for this patriarchal group the name "old family" (Altfamilie); and he finds its most famous examples in Hellas and Rome. Here monogamy gained the victory; and so, under the influence mainly of Stoicism and Christianity, the foundations of modern marriage and the individual family were laid.[173]
The influence of economic forces on the evolution of matrimonial and family institutions is especially emphasized by Grosse. Restricting his examination to the conditions which lie within actual "historical or ethnological experience," he seeks to demonstrate that the "various forms of the family correspond to the various forms of economy (Wirthschaft);" that "in its essential features the character of each particular form of the family may be explained by the form of economy in which it is rooted." For the sake of clearer analysis the peoples known to history or ethnology are arranged, not in three, but in five groups according to the leading types of industrial life. These are the lower and upper hunters, the pastoral peoples, and the lower and upper cultivators of the soil.[174] But, like Kohler, Lippert, and Hellwald,[175] the author rejects the popular theory adhered to by Hildebrand, that the chase, herding, and agriculture are three successive stages of progress through which all the races of mankind have necessarily passed. For, as a matter of fact, some pastoral peoples, and even some hunters, like the Eskimo, are more advanced in culture than various peoples who are chiefly dependent upon agriculture; and some tillers of the soil, as Hildebrand concedes, may never have passed through the pastoral stage.[176] On the other hand, Grosse distinguishes two forms of the family: the individual family (Sonderfamilie), or the community of parents and children living in a lasting and exclusive marriage relation, and the great-family (Grossfamilie), which comprises, not merely parents and children, but all descendants with their families, so far as they are not separated from it by marriage or otherwise. Examples of the "great-family" are afforded by the Romans and the Chinese; while the "individual family" is practically the only form known wherever western European culture prevails. In each form of the family either the maternal or the paternal succession (Mutterfolge or Vaterfolge) may exist; but succession must not be confused with the matriarchate or with the patriarchate, each involving the idea of authority; although paternal succession usually implies paternal power, while succession in the female line does not necessarily carry with it the supremacy of the mother.