1

Sir Henry

and the recognition of kinship in the female 1 line. Maine in this connection refers incidentally to Sir Robert Filmer in whose "Patriarchia "the existence of the patria potestas among the ancient Hebrews is alleged. But, as McLennan justly observes, "to those who have studied the controversy between Locke and Filmer it may seem wonderful that the truth of Filmer's main position could be thus lightly assumed by anyone, and especially by any lawyer, who had read Locke's masterly reply to the pleadings of his opponent."3 The principal conclusions of McLennan are sustained in a striking way, for a sister-branch of the Semitic race, by the researches of Wilken and Robertson Smith into the marriage customs of early Arabia. The ancient Hebrews did not have agnation; yet they "traced descent from the father for the purposes of what we may call rank, or a feeling of caste," and this was the source of paternal power. The house-father exercised a high degree of authority over his wives and children, but he can scarcely be regarded as a patriarch in the strict sense of the term."

1 On the Hebrew family see "Patriarchal Theory," 35-50, 132, 133, 243-47, 273, 274 note, 289, 306, 307, 315, passim.

2 Filmer's "Patriarchia, or the Natural Power of Kings," appeared in 1680; Locke's "Two Treatises on Government," in 1690. Both works are reprinted in the ninth number of Morley's “Universal Library."

3 See "Patriarchal Theory," 36 ff., 243 ff., 273 note, where a summary of Locke's argument, with additional evidence against the existence of agnation and patria potestas and in favor of an original maternal system among the Hebrews, will be found.

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4 Robertson Smith, “Kinship and Marriage"; Wilken, "Das Matriarchat bei den alten Arabern, a work suggested by Smith's "Animal Worship and Animal Tribes,' 'Journal of Philology," IX, 75-100. These writers have found among these Semitic tribes the system of kinship through the mother in actual use, with traces of polyandry, exogamy, and the totem gens; and Wilken believes that he finds evidences of early promiscuity. See especially Kohler, "Ueber das vorislamitische Recht der Araber," ZVR.," VIII, 238-61; and Friedrichs, "Das Eherecht des Islam," ibid., VII, 240-84, especially 255 ff., who shows that the Mohammedan house-father exercises great authority over his wife, yet she has her own property and receives a dower. At present, relationship in Arabia is generally counted in the male line; and therefore, Westermarck, "Human Marriage," 102, note 4, regards the conclusion of Smith that originally the system of female kinship exclusively prevailed as "a mere hypothesis." 5 Wake, "Marriage and Kinship," 244.

According to Ewald the ancient Hebrew father might "sell his child to relieve his own distress, or offer it to a creditor as a pledge." "The Antiquities of Israel" (London, 1876), 190; Westermarck, op. cit., 228; and the Levitical law prescribes death as the penalty for striking a parent (Leviticus 20:9; Exodus 21: 15, 17); but the penalty could only be administered through appeal to the whole community, Westermarck, op. cit., 228. Cf. Michaelis, "Commentaries on the Laws of Moses," I, 444, who shows that the mother, as well as the father, might sometimes choose wives for the sons; while McLennan and Locke prove that the position of the mother in Israel was higher than is consistent with Roman patriarchalism.

III. The Theory in the Light of Recent Research

Let us now see somewhat more in detail what light is thrown by recent investigation on the controversy between Maine and McLennan. Westermarck has taken great pains to enumerate the uncivilized peoples, chiefly non-Aryan, among whom descent and usually inheritance follow the paternal side;1 and he finds that the number is "scarcely less" than the number of those among whom the female line is exclusively recognized. But in many of these cases it seems probable that the parental rather than the agnatic system prevails, though the male line may take precedence. In some instances rank or authority descends from father to son, while in other respects the female line predominates. Doubtless more frequently than is usually imagined a mixed system rather than strictly paternal or a strictly maternal system would be found to exist. As the result of his inquiry, Westermarck rejects the hypothesis that kinship through the mother is a primitive and universal stage, though he does not substitute the agnatic theory in its place. Starcke, on the other hand, after an extended examination of the customs of rude races, especially in America and Australia, suggests that the paternal as a general rule probably preceded the maternal system which arose only with the development of the gentile organization. But Starcke's evidence can scarcely be accepted as convincing.

4

Similar difficulties are presented by the question of the prevalence of the so-called patriarchal power among non-Aryan races. Many apparent examples of despotic authority can be enumerated;" but it is often hard to determine whether, as in the cases of the Arabs and Hebrews, we have to do merely with a high degree of

"Human Marriage," 97-104, notes. Cf. Friedrichs, "Ueber den Ursprung des Matriarchats," "ZVR.," VIII, 371-73; Kohler, ibid., VI, 403 (Korea); VII, 373 (Papuas).

2 Compare Wake, "Marriage and Kinship," 267 ff., 362 ff., 382, 396 ff.; especially Friedrichs, "Familienstufen und Eheformen," "ZVR.," X, 20912; and Dargun, "Mutterrecht und Vaterrecht," 3, 28, 118, who believed the so-called "mixed systems" are merely a consistent union of two entirely different principles the principle of relationship with the principle of power or protection.

Starcke, op. cit., 26, 27 (Australia), 30 (America), 58 ff., 101 ff. Compare the criticism of Hellwald, "Die mensch. Familie," 456 ff.; and on the development of the patriarchal family, see Lippert, "Kulturgeschichte," II, 505-54.

Westermarck, op. cit., 224-35, gives an enumeration. Noteworthy examples of patriarchal power are afforded by the ancient Peruvians and Mexicans, and by the modern Chinese and Japanese. On the Nahua and Maya natives see Bancroft, "Native Races,' II, 247-53, 663-68. Cf. Kohler, "Das Recht der Azteken," "ZVR.," XI, 54, 55; also ibid., VI, 374 (Chinese), 333, 334; VII, 373 (Papuas).

power on the part of the house-father or with a genuine patria potestas of the Roman type. Naturally, as Westermarck suggests, the father's authority among savages "depends exclusively, or chiefly, upon his superior strength;" while anything like a patriarchal "system" can only arise later under the influence of ancestor-worship and more developed social and industrial conditions. Where authority depends solely or mainly upon brute force, it is evident that a very protracted patriarchal despotism over the sons is hard to conceive. Moreover, much error has doubtless arisen through falsely assuming that paternal authority and mother-right are incompatible; whereas they may well coexist, as will presently appear.

For the Indo-Germanic or Aryan peoples the investigations of Zimmer, Schrader, Delbrück, Kohler, and especially the researches of Leist, enable us to speak with a higher degree of confidence, though only for the period covered by positive linguistic and legal evidence. Bachofen, McLennan, and after them many other writers,... have maintained that among all branches of the Aryan stock conclusive proofs exist of a former matriarchate, or, at any rate, of exclusive succession in the female line. But this view is decidedly rejected, if not entirely overthrown, by the philologists, and depends for its support on the presence in later institutions of alleged survivals. The judgment of Delbrück must probably be accepted as decisive for the present state of linguistic, if not of all scientific, inquiry. He declares. that "no sure traces of a former maternal family among the IndoGermanic peoples have been produced." Similar conclusions are reached by Schrader, Max Müller, and Leist. Also, among the

1 Westermarck, op. cit., 225.

2 Bachofen, "Das Mutterrecht;" McLennan, "Studies," I, 121 ff., 195 ff.; idem,"Patriarchal Theory," 50 ff., 71 ff., 96 ff., 120 ff., 250 ff.; Dargun, Mutterrecht und Raubehe," 8, 13, passim; Giraud-Teulon, "Les origines du mariage," 130 ff., 286 ff., 329 ff.; idem, "La mère chez certaines peuples de l'antiquité"; Lippert, "Geschichte der Familie," 4 ff.; Lubbock, "Origin of Civilization," 153, 154. Kohler, "Indisches Ehe- und Familienrecht," "ZVR.," III, 393 ff., holds that the primitive Aryans must necessarily have recognized relationship through the mother. For the literature of this subject see the next chapter.

Delbrück, "Das Mutterrecht bei den Indogermanen," "Preussiche Jahrbücher," XCVI, 14-27, a clear summary of the results of recent research. Cf. his "Die Indogermanischen Verwandtschaftsnamen" (Leipzig, 1889). According to Hellwald, "Die mensch. Familie," 453-80, especially 459, 460, patriarchalism was fully established at the earliest dawn of Indic history; but there are nevertheless traces of earlier motherright.

Schrader, "Sprachvergleichung und Urgeschichte" (2d ed.), 536 ff.; Jevon's Translation, 369 ff.; Leist, "Alt-arisches Jus Gentium," 51-58. Max Müller declares that "whether in unknown times the Aryas ever

institutional writers, Wake declares that "primitively among the peoples belonging to the wide-spread Aryan or Indo-European stock, while relationship was acknowledged through both parents, descent was traced preferably in the male line;" and Bernhöft, constrained through the evidence presented by Schrader and Delbrück, believes that it is now placed "beyond question that the primitive Aryans did not live according to mother-right," but were united in family groups resembling the south Slavonian house communities. On the other hand, Dargun, the foremost defender of the theory of mother-right, thinks that Bernhöft has "capitulated" too easily. In his last monograph, entitled "Mutterrecht und Vaterrecht," he maintains essentially the conclusion of his "Mutterrecht und Raubehe," that before their separation the Aryan people had developed the system of kinship "through the mother as the only or chief basis of blood-relationship" and had "subordinated their entire family law to this principle.' 994 But the later treatise contains a very important modification, or perhaps, more justly speaking, extension, of the author's theory. Setting aside as still an open question the general prevalence of promiscuity or sexual communism at the very dawn of distinctively human life, Dargun conceives that, before any system of kinship, maternal or agnatic, became recognized as a principle of customary family law, there must have existed a family, or rather parentgroup (Elterngruppe), in which the father was protector and master of the mother and her children. This parent-group is the "hypothetical primordial cell of the family," brought together by sexual requirements and the need of sustenance and protection. It is "structureless, devoid of any firm bond, since it rests neither upon the principle of relationship nor that of legalized power." Its resemblance to the patriarchal family, though misleading, "is not without significance." For it "forms the necessary stage of an

passed through that metrocratic stage in which the children and all family property belong to the mother, and fathers have no recognized position whatever in the family, we can neither assert nor deny." "Biographies of Words," xvii.

1

Wake, "Marriage and Kinship," 359 ff., especially 382, where a thorough and detailed criticism of McLennan's theory is given.

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2 Bernhöft, "Die Principien des eur. Familienrechts, ZVR.," IX, 418, 419, 437 ff. See also his Römische Königszeit," 202 ff.; and his articles in "ZVR.," VIII, 11; IV, 227 ff.; and compare Dargun, "Mutterrecht und Vaterrecht," 91-94, 108. Starcke, op. cit., 101-18, also gives a searching examination of the theory of McLennan and the earlier views of Dargun, rejecting their conclusions.

"Mutterrecht und Vaterrecht," 108.

↑ Dargun, “Mutterrecht und Raubehe," 13. Cf. the "Mutterrecht und Vaterrecht," 95, 117 ff., passim.

evolution which in analogous manner is also passed through by property. Inductively it is still demonstrable that individualism and atomism, not communism, as is usually assumed, are the starting point of evolution." As a general rule, according to Dargun, the structureless parent-group is superseded by the maternal family, whose basis is mother-right, or the exclusive legal recognition of blood-relationship in the female line. Only in rare cases does the patriarchal agnatic family follow immediately upon the primitive group, without prior development of motherright; 2 and hence, under exceptional conditions hindering the rise of the maternal system, do we find a form of the family in which, from a very early period, the house-father is the source of authority, practical or legalized.

▷ Aside from his theory of evolution, in his principal thesis, which he fairly sustains by powerful argument, Dargun has rendered to science a distinct service. It is, he insists, highly necessary carefully to distinguish between power and relationship. "Mother right" does not involve "maternal power" or the matriarchate, though sometimes actually united with it; nor does the headship of the house-father as provider, protector, and master imply agnation, the so-called "father-right." There is no contrast between power and relationship. "Mother-right in the sense of exclusive maternal kinship is compatible with a patriarchate just as exclusive." They may, and often do, coexist. It follows that the presence of the maternal system of kinship does not imply the existence of maternal power; just as it does not imply the nonexistence of paternal authority. The distinction between power and kinship is justly declared to be an "indispensable key" for the solution of the greatest difficulties arising in this branch of sociological science, the disregard of which has often vitiated or confused the argument even of the foremost investigators. With the aid of his key Dargun examines the linguistic evidence, which he finds favorable to the existence of mother-right among all the Aryan peoples after the separation, though united with a real supremacy of the house-father; and he protests vigorously against the tendency, even on the part of Leist, to confound old Indic with old 1 Dargun, “Mutterrecht und Vaterrecht,” 41, 42, 4 ff., 28, 29–42, 118, passim.

2 Ibid., 41.

Ibid., 3 ff., 28, 36, 86 ff., 155, passim. As remarked in the text, the whole work is concerned with the thesis in question. The distinction is also made in the "Mutterrecht und Raubehe," 18.

See "Mutterrecht und Vaterrecht,” 86–116, for his criticism of the linguistic argument.