A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
Theory, edited and completed by Donald McLennan (London, 1885).
[32] Ancient Law, 118-20, 123.
[33] The marriage of Jacob with Laban's daughters is the case in point. In "beena" marriage—the name given to the institution in Ceylon—"the young husband leaves the family of his birth and passes into the family of his wife, and to that he belongs as long as the marriage subsists. The children born to him belong, not to him, but to the family of their mother. Living with, he works for, the family of his wife; and he commonly gains his footing in it by service. His marriage involves usually a change of village; nearly always (where the tribal system is in force) a change of tribe—so that, as used to happen in New Zealand, he may be bound even to take part in war against those of his father's house; but always a change of family. The man leaves father and mother as completely as, with the patriarchal family prevailing, a bride would do; and he leaves them to live with his wife and her family. That this accords with the passage in Genesis will not be disputed." Patriarchal Theory, 42, 43. Nevertheless, in this case McLennan is certainly mistaken. We have here to do with that form of wife-purchase called "marriage by service;" see Lichtschein, Die Ehe, 10, 11; the argument of Wake, Marriage and Kinship, 239-44; and Friedrichs, Familienstufen und Eheformen, ZVR., X, 207, 208. "Beena" marriage existed, however, among other Semitic peoples and possibly also among the Hebrews: Smith, Kinship and Marriage, 108, 175-78, 146. It is found also in Africa and in many other places: Wake, op. cit., 149, 299-301; McLennan, op. cit., 43; Westermarck, Human Marriage, 109, 389-90; Tylor, On a Method of Investigating Institutions, 246 ff.; Starcke, op. cit., 78; Hellwald, Die mensch. Familie, 255, 266.
[34] On the Hebrew family see Patriarchal Theory, 35-50, 132, 133, 243-47, 273, 274 note, 289, 306, 307, 315, passim.
[35] Filmer's Patriarchia, or the Natural Power of Kings appeared in 1680; Locke's Two Treatises on Government, in 1690. Both works are reprinted in the ninth number of Morley's Universal Library.
[36] See Patriarchal Theory, 36 ff., 243 ff., 273 note, where a summary of Locke's argument, with additional evidence against the existence of agnation and patria potestas and in favor of an original maternal system among the Hebrews, will be found.
[37] Robertson Smith, Kinship and Marriage; Wilken, Das Matriarchat bei den alten Arabern, a work suggested by Smith's "Animal Worship and Animal Tribes," Journal of Philology, IX, 75-100. These writers have found among these Semitic tribes the system of kinship through the mother in actual use, with traces of polyandry, exogamy, and the totem gens; and Wilken believes that he finds evidences of early promiscuity. See especially Kohler, Ueber das vorislamitische Recht der Araber, ZVR., VIII, 238-61; and Friedrichs, Das Eherecht des Islam, ibid., VII, 240-84, especially 255 ff., who shows that the Mohammedan house-father exercises great authority over his wife, yet she has her own property and receives a dower. At present, relationship in Arabia is generally counted in the male line; and therefore, Westermarck, Human Marriage, 102, note 4, regards the conclusion of Smith that originally the system of female kinship exclusively prevailed as "a mere hypothesis."
[38] Wake, Marriage and Kinship, 244.
[39] According to Ewald the ancient Hebrew father might "sell his child to relieve his own distress, or offer it to a creditor as a pledge."—The Antiquities of Israel (London, 1876), 190; Westermarck, op. cit., 228; and the Levitical law prescribes death as the penalty for striking a parent (Leviticus 20:9; Exodus 21:15, 17); but the penalty could only be administered through appeal to the whole community, Westermarck, op. cit., 228. Cf. Michaelis, Commentaries on the Laws of Moses, I, 444, who shows that the mother, as well as the father, might sometimes choose wives for the sons; while McLennan and Locke prove that the position of the mother in Israel was higher than is consistent with Roman patriarchalism.
[40] Human Marriage, 97-104, notes. Cf. Friedrichs, "Ueber den Ursprung des Matriarchats," ZVR., VIII, 371-73; Kohler, ibid., VI, 403 (Korea); VII, 373 (Papuas).
[41] Compare Wake, Marriage and Kinship, 267 ff., 362 ff., 382, 396 ff.; especially Friedrichs, "Familienstufen und Eheformen," ZVR., X, 209-12; and Dargun, Mutterrecht und Vaterrecht, 3, 28, 118, who believes the so-called "mixed systems" are merely a consistent union of two entirely different principles—the principle of relationship with the principle of power or protection.
[42] Starcke, op. cit., 26, 27 (Australia), 30 (America), 58 ff., 101 ff. Compare the criticism of Hellwald, Die mensch. Familie, 456 ff.; and on the development of the patriarchal family, see Lippert, Kulturgeschichte, II, 505-54.
[43] Westermarck, op. cit., 224-35, gives an enumeration. Noteworthy examples of patriarchal power are afforded by the ancient Peruvians and Mexicans, and by the modern Chinese and Japanese. On the Nahua and Maya natives see Bancroft, Native Races, II, 247-53, 663-68. Cf. Kohler, "Das Recht der Azteken," ZVR., XI, 54, 55; also ibid., VI, 374 (Chinese), 333, 334; VII, 373 (Papuas).
[44] Op. cit., 225.
[45] Bachofen, Das Mutterrecht; McLennan, Studies, I, 121 ff., 195 ff.; idem, Patriarchal Theory, 50 ff., 71 ff., 96 ff., 120 ff., 250 ff.; Dargun, Mutterrecht und Raubehe, 8, 13, passim; Giraud-Teulon, Les orignes du mariage, 130 ff., 286 ff., 329 ff.; idem, La mère chez certaines peuples de l'antiquité; Lippert, Geschichte der Familie, 4 ff.; Lubbock, Origin of Civilization, 153, 154. Kohler, "Indisches Ehe- und Familienrecht," ZVR., III, 393 ff., holds that the primitive Aryans must necessarily have recognized relationship through the mother. For the literature of this subject see the next chapter.
[46] Delbrück, "Das Mutterrecht bei den Indogermanen," Preussiche Jahrbücher, XCVI, 14-27, a clear summary of the results of recent research. Cf. his Die Indogermanischen Verwandtschaftsnamen (Leipzig, 1889). According to Hellwald, Die mensch. Familie, 453-80, especially 459, 460, patriarchalism was fully established at the earliest dawn of Indic history; but there are nevertheless traces of earlier mother-right.
[47] Schrader, Sprachvergleichung und Urgeschichte (2d ed.), 536 ff.; Jevons's Translation, 369 ff.; Leist, Alt-arisches Jus Gentium, 51-58. Max Müller declares that "whether in unknown times the Aryas ever passed through that metrocratic stage in which the children and all family property belong to the mother, and fathers have no recognized position whatever in the family, we can neither assert nor deny."—Biographies of Words, xvii.
[48] Wake, Marriage and Kinship, 359 ff., especially 382, where a thorough and detailed criticism of McLennan's theory is given.
[49] Bernhöft, "Die Principien des eur. Familienrechts," ZVR., IX, 418, 419, 437 ff. See also his Römische Königszeit, 202 ff.; and his articles in ZVR., VIII, 11; IV., 227 ff.; and compare Dargun, Mutterrecht und Vaterrecht, 91-94, 108. Starcke, op. cit., 101-18,