A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
a product of social experience. Hence to understand its modern aspects it is needful to appeal to the general sociological facts surrounding its origin and its early history among the races of mankind. It is necessary to get our bearings. At the dawn of history the Teutonic family was essentially monogamic, originating in a contractual relation. What, then, do we know as to the origin of the monogamic family and regarding the conditions under which marriage by contract arose? Part I will concern itself with the solution of this question.
The literature[2] of primitive marriage and the family is already formidable; and, however contradictory and discouraging, on first examination, its conclusions may appear, there can be little doubt that they demonstrate the possibilities of the comparative method[3] in the domain of social institutions. It is in this field, indeed, that evolutional science bids fair to achieve its most signal triumph. At last, in the laboratory of science, there is some prospect that man may come really to know himself. On the other hand, it is precisely in the study of primitive marriage that the "perils of historical narrative" are most clearly revealed.[4] Nowhere, perhaps, can there be found rasher inference[5] and more sweeping generalization from inadequate data. Too often economic and psychological laws have been slighted; and, in a field where their careful observance is so vitally important, the fundamental principles of organic evolution—such, for instance, as natural selection—have frequently been ignored.[6] A vast mass of interesting facts relating to man's social development, highly important for him to know, has been disclosed. But, with a few notable exceptions, the signal failure of investigators thus far has been the attempt to sustain theories of uniform social progress. The criticism, especially, to which the writings of Bachofen, Maine, Morgan, and McLennan have given rise has greatly weakened the faith of scholars in the doctrine of universal stages of evolution through which all mankind has run.[7]
I. STATEMENT OF THE THEORY
Students of comparative institutions have generally regarded the family as the unit or germ from which the higher forms of social organism have been evolved. A German scholar declares that among all the races of antiquity "the constitution of the family was the basis and prototype of the constitution of the state."[8] The same theory is clearly set forth and the process of political expansion carefully described by Plato and also by Aristotle,[9] who base it upon their own observation both among "Hellenes and barbarians," and each illustrates it by reference to the Cyclops of Homer.[10] It is not wholly improbable, as will presently appear, that the family in some form must be accepted as the initial society, possibly among all the races of mankind. At a very early ethnical period the family, so far as it implies great authority, perhaps even the despotic power of the house-father over his wife and children, may often have been "patriarchal." To admit this, however, is very different from accepting as the primordial cell of social development the strictly defined patriarchal family of Sir Henry Maine's Ancient Law. In this book, which made its appearance in 1861, we are told that the "effect of the evidence derived from comparative jurisprudence is to establish that view of the primeval condition of the human race which is known as the Patriarchal Theory."[11] The primitive family as thus conceived is substantially the Roman family, not in all respects as it actually appears in the historical period, but as it is thought that it must have been before the process of transformation and decay began. It is a much more extended group than the modern family, embracing under the headship of the eldest valid male parent all agnatic descendants and all persons united to it by adoption, as well as slaves, clients, and other dependents.[12] The power of the house-father is most despotic, though exercised during his entire lifetime over the unmarried daughters and over even the married sons and their wives and children. Thus originally, it is said, the Roman pater familias has power of life and death, vita necisque, over his children. He may sell them into slavery, and sons, even those who hold the highest offices of state, can originally own no property.[13] The patriarch is king and priest of the household. As a sort of "corporation sole," he is likewise its representative and administrator; for the property is regarded as a part of the family, and on the death of the house-father the family devolves upon the universal successor.[14] A characteristic feature of the patriarchal family is agnation, or the system of tracing kinship through males only.[15] Agnatic relationship "is in truth the connection between members of the family, conceived as it was in the most ancient times."[16] Its foundation is "not the marriage of father and mother, but the authority of the father.... In truth, in the primitive view, relationship is exactly limited by patria potestas. Where the potestas begins, kinship begins; and therefore adoptive relatives are among the kindred. Where the potestas ends, kinship ends; so that a son emancipated by his father loses all rights of agnation. And here we have the reason why the descendants of females are outside the limits of archaic kinship." Indeed "it is obvious that the organization of primitive societies would have been confounded, if men had called themselves relatives of their mother's relatives."[17] The basis of the patriarchal family is the patria potestas, but in its "normal shape" it has not been and could not be "generally a durable institution."[18] Yet its former universality may be inferred from certain derivative institutions, such as the perpetual tutelage of women, the guardianship of minors, the relation of master and slave, and especially from agnation which is found "almost everywhere" and is "as it were a mould" retaining the imprint of the paternal powers after they have ceased to exist.[19] Applying this test chiefly, Maine finds evidence of the existence of the potestas among the Hebrews as well as all the peoples of the Aryan stock; and he believes that it would be hard to say "of what races of men it is not allowable to lay down that the society in which they are united was originally organized on the patriarchal model."[20]
The patriarchal family as thus constituted is the "type of an archaic society in all the modifications which it was capable of assuming." From it as in concentric circles have been successively evolved all the higher forms of political organization. Everywhere, as at Rome, "the aggregation of families forms the gens or house. The aggregation of houses makes the tribe. The aggregation of tribes constitutes the commonwealth."[21] The state is therefore the result of the expansion of its primordial cell;[22] and the genealogical organization of society precedes and overlaps the territorial. All these groups, lower and higher, regard themselves as united by the bond of kinship. But, as a matter of fact, the kinship is often assumed; and the heterogeneity of blood is explained as the result of the fiction of adoption by which relationship is artificially extended and strangers are admitted to the sacra. Without this fiction, says Maine, "I do not see how any one of the primitive groups, whatever were their nature, could have absorbed another, or on what terms any two of them could have combined, except those of absolute