CHAPTER XIX.
THE FAMILY IN CIVILISED COUNTRIES.
I. The Family in China.—Filiation in Japan—Traces of ancient fraternal filiation in China—Fictitious kinship in China—The patriarchate in China—The Chinese clan—The idea of the family in the political organisation.
II. The Family among the Semitic Races.—The primitive clan among the Arabs—The primitive clan among the Hebrews—Laws of inheritance among the Hebrews—The uterine sister and the german sister—The maternal family in Phœnicia.
III. The Family among the Berbers.—Meaning of the word “Berber”—Maternal filiation among the ancient Berbers and Touaregs—Traces of the ancient organisation of the clan among the Kabyles—The actual patriarchate among the Kabyles—Categories of heirs.
IV. The Family in Persia.—No trace of the familial clan and of exogamy—Incestuous endogamy—Marriage by rent in modern Persia—The right of primogeniture.
V. The Family in India.—The family in Vedic India—The patriarchate in the Code of Manu—The right of primogeniture—Paternity by suggestion—Traces of the familial clan and of the maternal family in Tamil India and Ceylon.
VI. The Greco-Roman Family.—The primitive gens—Maternal filiation in Crete, in primitive Athens—Uterine fraternity and german fraternity—Paternal filiation in the Orestes—The Patria potestas at Rome.
VII. The Family in Barbarous Europe.—The Celtic clan—Incestuous endogamy of the Irish—The Slav mir—Traces of maternal filiation in Germany and among the Picts.
In order to study the family under the latest forms that it has assumed, we must set aside all strict distinction of race. Doubtless the white races have ended by excelling the others, and by attaining a higher degree of moral, social, and intellectual development. Nevertheless, the ethnic groups, belonging to the races classed together en bloc as inferior, have emerged from savagery, and formed large societies, which have been veritable training schools for the men of their race.
Now, in all the States which have succeeded in attaining some degree of civilisation, the paternal family is the type that has been finally adopted. It was thus in Peru, in Mexico, and even in ancient Egypt, where King Philometor gave the finishing stroke to the maternal family which had so long flourished in the valley of the Nile. With much more reason in China, a country very civilised after its own fashion, an analogous evolution must have been effected. Indeed, in China proper, there are scarcely any traces of the maternal family left; but they are still visible in Japan, whose civilisation has been entirely borrowed from China.
In Japan, as formerly among the Basques, filiation is subordinated to the transmission of the patrimony whole and inalienated. It is to the first-born, whether boy or girl, that the inheritance is transmitted, and he or she is forbidden to abandon it. At the time of marriage the husband or wife must take the name of the heir or heiress, who marries and personifies the property. Filiation is therefore sometimes maternal and sometimes paternal; but the maternal uncle still bears the name of “second little father”; the paternal aunt is called “little mother,” the paternal uncle is called “little father,” etc.[1038] Marriage between groups of brothers and other groups of sisters has been common enough in primitive societies to enable us to see in this familial nomenclature the traces of one of those ancient unions at once monogamic and polygamic.
In China the language itself attests the ancient existence of a marriage contracted by a group of brothers having their wives in common, but not marrying their sisters. A Chinaman always calls the sons of his brother his “sons,” whilst he considers those of his sister as his nephews;[1039] but the virtual, or rather fictitious fathers, brothers, and sons, are distinguished from the real fathers, brothers, and sons, by the epithet “class” added to their appellation. Thus they say, “class-father, class-son, class-brother”—that is to say, the man who belongs to the class of the father, to that of the son, or to that of the brother. It is therefore simply the American nomenclature perfected.[1040] We have previously seen that in China proper, not only the paternal family, but the patriarchate, are rigorously established; that woman is in extreme subjection, and always disinherited;[1041] but certain impediments to marriage can only relate to an ancient familial organisation which has now disappeared. In all the vast Chinese empire there are scarcely more than from one to two hundred family names, and the Chinese call themselves the “people of a hundred families.” Now in China all marriage between persons bearing the same name is prohibited.[1042] In certain villages every one has the same family name; two or three thousand persons, for example, are called “sheep,” “ox,” “horse,” etc., all of them appellations agreeing well with clans having corresponding totems.[1043] But however it may have been in the past, at the present day masculine filiation is well established in China, and nine degrees of kinship in the direct line are distinguished, which an old Chinese author has enumerated as follows:—“All men who come into the world have nine degrees of kinship—namely, my own generation in the first place, then that of my father, of my grandfather, and of the father and grandfather of my grandfather. In a descending line come the generation of my son, that of my grandson, then that of his son and his grandson. All the members of one same generation are brothers to each other.”[1044] Let us note that this filiation, short as it is, is still associated with kinship by classes.
Doubtless these accounts, taken alone, would be insufficient, but united with those which the study of the family among the Australians, the Redskins, the Tamils, etc., has furnished us with, they warrant us in believing that the Chinese paternal family is the last term of an evolution having for its starting-point the familial clan, and having passed through the maternal family.
Let us add, in conclusion, that the system of fictitious kinships is reflected throughout the governmental organisation of China. In reality the political structure of China is only an enlarged copy of the family. The emperor is the reputed father and even mother of all the empire. The mandarin who governs a town is the “father” of that town, and he himself has for “governmental father” the mandarin of a superior grade, whom he obeys.[1045]
We shall now discover traces of a similar evolution of the family among the Semites and Berbers.
II. The Family among Semitic Races.
When we read the word “patriarch” in our current literature, our thoughts instantly fly to the chief of the ancient Semitic, and especially the Hebraic family, the little tyrant holding grouped under his despotic sway his wives, children, and slaves—that is to say, the patriarchate in all its severity, with the power of life and death attributed to the patriarch. But this Semitic patriarch has not existed from the beginning; he is the result of a long anterior evolution, and, like so many other peoples, the Semites have begun with the confused kinship of the familial clan. We have previously found, in studying primitive marriage among the Arabs, an ancient régime of free polyandry, analogous to that of the Naïrs. At this distant epoch the woman still bore children for her clan, and this clan was so much like a large family, that in the present day even, in certain parts of Arabia, the word used for clan literally signifies “flesh.”[1046] To be of the same clan, therefore, was to be of the same flesh.
It was in a relatively recent epoch that paternal filiation was established among the Arabs. In the time of the prophet the prohibitions of marriage were still on the maternal side,[1047] and in all ages the collateral kinship with uncles and aunts has been considered very close in Arabia.[1048]
Among the Hebrews, individual property was instituted in very early times, for it is alluded to in Genesis.[1049] But various customs show clearly the ancient existence of communal clans. Thus the inheritance, especially the paternal inheritance, must remain in the clan. Marriage in the tribe is obligatory for daughters: “Let them marry to whom they think best; only to the family of the tribe of their father shall they marry. So shall not the inheritance of the children of Israel remove from tribe to tribe; for every one of the children of Israel shall keep himself to the inheritance of the tribe of his fathers.”[1050]
Moses instituted three classes of heirs: first the children, then the agnates, and then the members of the clan or gentiles.[1051] The Hebrew father did not inherit from his son, nor the grandfather from his grandson, which seems to indicate an ancient epoch, when the children did not yet belong to the clan of their father.
For a long time among the Hebrews the german sister was distinguished from the uterine sister; the kinship with this last was considered much closer. In primitive Judæa a man could marry the first, but not the second. To the King of Egypt and to Abimelech, who reproached Abraham for having passed Sarah off as his sister, the patriarch replies: “For indeed she is my sister; she is the daughter of my father, but not the daughter of my mother, and she became my wife.” In the same way Tamar could become the wife of Amnon, for she was only his paternal sister.[1052] The father of Moses and Aaron married his father’s sister, who was not legally his relation.[1053] Abraham himself could marry his paternal sister, and his brother Nabor took to wife his fraternal niece, the daughter of his brother.[1054] But by degrees paternal kinship was recognised by the same title as maternal kinship, and Leviticus advances as far as to expressly forbid marriage with father’s sisters as well as with mother’s sisters,[1055] “whether they be born at home or abroad.” Doubtless all these indications have their value; they are, however, only indications, and it is especially in placing them by the side of similar facts observed amongst other peoples where the existence of the maternal family and the familial clan is indisputable, that we are inclined to accord to them the same significance. In short, it is clear that the Hebrews early adopted paternal filiation and the patriarchate.
The memory of a distant epoch of confused kinship and of free sexual unions had, however, remained in Semitic tradition. Sanchoniathon, indeed, in his History of Phœnicia, says that the first men bore the name of their mother, because then the women yielded themselves without shame to the first comer.[1056] Among the Berbers familial evolution is much easier to follow than with the Semites, and its lower phases are more evident.
III. The Family among the Berbers.
During late years the meaning of the word “Berber” has become considerably widened. We are now inclined to consider as varieties of the same very old race the men of Cro-Magnon, the ancient inhabitants of the cave of Mentone, the ancient Vascons, the Cantabrians, Iberians, Guanchos, Kabyles, Berbers, and Touaregs, etc. All these peoples are thought to belong to one great human type, which we may call Berber, and of which numerous representatives still exist. Anterior to all Asiatic migration, and from the time of the stone age, this race seems to have occupied the south of Gaul and Spain, the Canary Isles, and Northern Africa. At the present day the most important epigonic groups of the Berber race are the Kabyles and the Touaregs of the Sahara. Several writers of antiquity have told us how the family of the ancient Berbers was formerly instituted, and we know de visu what it is among contemporary Berbers. We are therefore able to give a rough outline of it.
The general characteristics of the Berber family seem to have been a privileged position accorded to women and maternal filiation, with tendencies even to the matriarchate. Speaking of the Cantabrians, Strabo writes: “Among the Cantabrians usage requires that the husband shall bring a dower to his wife, and the daughters inherit, being charged with the marriage of their brothers, which constitutes a kind of gynecocracy.”[1057] The word gynecocracy is surely too strong. We have here probably an account of a custom which still exists in Japan, and which existed quite recently in Basque countries, that of leaving to the first-born, whether boy or girl, the administration of the inalienable patrimony of the family, and of obliging his or her wedded partner to take the name and abode of the family. This is what M. le Play has formerly called the family-stock; but this family-stock may, and doubtless must, have co-existed primitively with maternal filiation.
This last is still in force among the Touaregs of the Sahara, and I have previously spoken of the great independence which their women enjoy, and especially the rich and noble ladies. At Rhât, for example, by inheritances and by the accumulation of productions, it has come to pass that nearly the whole of the real property has fallen into the hands of the women.[1058] We know that in ancient Egypt, where the Berbers were largely represented, the women also enjoyed a very similar position. As a consequence of this régime, the rights and pretensions of the Berber ladies have become so inconvenient for the men, that many of them prefer to marry slaves.[1059] The family among the Touaregs will surely evolve, as it formerly did in Egypt, and as it has done with the Kabyles, where the most rigorous patriarchate has at length replaced the ancient maternal family. In Kabyle, however, traces of the ancient organisation, anterior to Rome and to Islamism, still exist. The Kabyle village has, in its tribe, a political personality which strongly recalls the clan. Many customs, indeed, are evident survivals of an ancient communal organisation. Thus, with the Kabyles, mutual assistance between fellow-citizens is a strict duty. Even in a foreign land the fellow-citizen must be helped, at the risk of all interests and at the peril of one’s life. Whoever fails in this duty incurs public contempt; he is even punished with a fine, and made responsible for the losses suffered by the deserted compatriot. Even the Kabyle of another tribe must, at need, be succoured, or his tribe may bring a plaint before the djemâa of the tribe to which the egoist belongs, and the latter is punished or reprimanded.
In a Kabyle village, when an individual erects a building, he has a right to the assistance of all the inhabitants. In the same way the greater part of the field labour is performed by mutual assistance.[1060] But all this refers to the men; for women there remains no trace either of the maternal family or of the more or less serious advantages which it generally confers on wives and mothers. One custom, however, and one only, still recalls ancient manners; this is “the right of rebellion,” of which I have spoken elsewhere.
We are acquainted with the date at which the last seal was placed on the subjection of the Kabyle woman. It was only a hundred and twenty years ago that the men refused henceforth a legal position to women in the succession of males.[1061] At present the Kabyle woman, whether married or not, no longer inherits.[1062]
The Kabyle Kanouns admit six categories of heirs: 1st, the açeb or universal heirs—that is to say, all the male descent, the direct line through males, and all the collaterals descending through males of the paternal branch; 2nd, the ascendants through males on the paternal side—the father, grandfather, and great-grandfather; 3rd, the uterine brother, heir to a legal portion; 4th, the master and the freed man, açeb heirs of each other; 5th, the karouba—that is to say, the community having its assembly of major citizens, the djemâa, and being a civil personage;[1063] 6th, the ensemble of the karoubas, constituting the village. However, the collaterals of all degrees may inherit in default of ascendants and descendants.[1064] In all this list there is no mention of women.
In fact, whatever property a Kabyle woman may have been able laboriously to amass, it falls to the male descent, to the ascendants, or to the husband, or to the collaterals in the paternal line. It is only in default of this cloud of male heirs that the succession to the property gained by a Kabyle woman devolves at last on her daughters, or her mother or grandmother.[1065] From all the preceding facts, and in spite of gaps in our information, we may, however, suppose that in the Berber world also the family has evolved in passing through three degrees, which we have already found amongst various races, and which are the communal clan, the maternal family, and the patriarchate.
This evolution seems therefore very common; it is a general fact, but we are not yet warranted in calling it a law. Thus, as far as our information goes, which it is true is not very complete, no trace of it is to be found among the ancient Persians, with whom we will now begin our interrogation of the Aryan races, from the point of view of their familial organisation. If the familial clan with confused kinship has ever existed in ancient Persia, it can only have been at an extremely remote epoch; there is no trace of it in the Avesta. And more than this, the most ancient accounts show us the patriarchal family, in the Hebraic sense of the word, instituted among the Mazdeans: a legitimate wife, purchased from her parents, and by the side of her a greater or less number of concubines; and lastly, dominating all the rest, the father of the family, having the right of life or death over the wives and children.[1066]
Not only does the clan not exist, but exogamy is replaced by the most incestuous of endogamies. Thus Strabo relates that, following a very ancient custom, the Magi might have commerce with their own mothers.[1067] According to Ctesias, marriage between mother and son was a common thing in Persia, and this not from sudden passion, but by deliberate proposal, “by false judgment.”[1068] Lucian, on his part, says expressly that marriage between brother and sister among the Persians was perfectly legal. Indeed, in various passages of the Avesta, consanguineous unions are recommended and praised.[1069] In the eyes of the Mazdeans, whose sacred code expressly forbade all alliance with infidels, endogamy, even when excessive, was evidently moral; and they encouraged it to such a degree as to approve of the kind of incest which is regarded as the most criminal by nearly all other peoples. Neither is there any trace of the matriarchate in ancient Persia, unless we choose to see a vestige of it in the legend according to which, in the time of the mythic monarchies, the eldest daughter of the king had the right to choose her husband herself. For this purpose all the young nobles of the country were assembled together at a festival, and the princess signified her preference by throwing an orange to the man who pleased her best.[1070] I mention this tradition that I may omit nothing, but it evidently constitutes a most insignificant proof. Modern Persia, being Mahometan, has regulated marriage and the family in accordance with the Koran. We find, however, by the side of the perpetual marriage which only death or divorce can dissolve, a form of conjugal union less solemn and more ephemeral, and which is not generally recognised by law in countries even slightly civilised. I speak of marriages for a term, or rather the hiring of a wife for a time and for a fixed price. Unions of this kind are legal in Persia. They are agreed on before the judge, and at the expiration of the contract, or rather the lease, the interested parties may renew the engagement if they think well. In a contrary case, the woman can only contract another union of the same kind after a delay of forty days. If before the expiration of the conjugal lease the man desires to break it, he can do so, but only on condition of placing in the hands of the woman the total sum stipulated in the contract.[1071] The offspring of these temporary unions, or of any sort of union, are all equal before the Persian law, which merely subjects them to the right of primogeniture. At the death of the father, the eldest son, though born of a slave mother, takes two-thirds of the succession. The remaining third of the property is divided amongst the other children, but in such a way that the share of the boys is half as large again as that of the girls.[1072] This right of primogeniture and these advantages granted to boys exclude all idea of maternal filiation in the customs of modern Persia, and we have seen that there was no trace of it in ancient Persia; this race therefore seems not to have passed through the phase of the maternal family, nor perhaps through that of the clan.
In India, on the contrary, certain customs and traditions appear to be true survivals, relating to an ancient organisation of exogamic clans with maternal filiation. But of these old customs the sacred books retain no trace. In Vedic India the family is already patriarchal, since the husband is called pati, which signifies master; but this Vedic family is of a most restricted kind. It is composed, essentially and simply, at first of the husband and wife, who become the father and the mother; then of the son and of the daughter, who are mutually brother and sister. The grandparents belong to the anterior family; the uncles and aunts are part of the collateral families.[1073] The Code of Manu is already less exclusive, for it admits, as we shall see, a fictitious filiation; but it is still patriarchal, and, according to Manu, the daughters occupy an entirely subordinate position. It is a son and a chain of male descendants that it is important to have; religion even makes it an obligation; for the ancestors of any man who has not a son to perform in their honour the sacrifice to the manes, or the Srâddha, are excluded from the celestial abode. It is necessary to have a son to “pay the debt of the ancestors.” “By a son, a man gains heaven; by the son of a son, he obtains immortality; by the son of this grandson, he rises to dwell in the sun.”[1074] The Code of Manu already proclaims the right of primogeniture. It is by means of the eldest son that a man pays the debt of the ancestors; it is therefore he who ought to have everything; his obedient brothers will live under his guardianship, as they have lived under that of the father,[1075] on condition, however, that if the sons are of different mothers, the mothers of the younger ones are not of superior rank to that of the mother of the eldest son.[1076] The son of a brahmanee, for example, would not yield precedence to the son of a kchâtriya: caste is always of the first consideration. But the quality of son may be acquired otherwise than by community of blood. Thus a husband may, as we have seen, have his sterile wife fertilised by his younger brother. The child thus conceived is reputed to be son of the husband; nevertheless, in the succession, he is given the share of an uncle only, and not the double share to which he would have had a right if he had been the real son[1077] by flesh and blood. If a man has the great misfortune to have only daughters, he can obviate this by charging his daughter to bear him a son. For this purpose, it suffices for him to say mentally to himself: “Let the male child that she gives birth to become mine, and fulfil in my honour the funeral ceremony.”[1078] The son thus engendered by mental incest and by suggestion, as we should say to-day, is perfectly authentic. He is not a grandson, but a real and true son, and he inherits all the fortune of his maternal grandfather, with the light charge on it of offering two funeral cakes—one to his own father, his father according to the flesh, the other to his maternal grandfather, or father according to the spirit.[1079] The law of Manu does not totally disinherit daughters, but it cuts down their share considerably. Under pain of degradation, brothers must give their sisters, but only to their german sisters, the fourth of their share, to enable them to marry.[1080] Another verse[1081] accords to the daughter the inheritance of the maternal property, composed of what has been given to the mother at her marriage. But to be capable of inheriting, this daughter must still be celibate. In the contrary case, she merely receives a present. In short, the whole Brahmanic code is based, in what concerns the family, on masculine filiation and the patriarchate. Nevertheless, customs that are kept up by the side of it, and doubtless in spite of it, prove that in certain parts of India there must formerly have existed exogamic clans and a system of maternal filiation.
But it is important to remark that these survivals are, or were, met with especially in Tamil districts, in Malabar or Ceylon, which were in great measure colonised by Tamils. In certain small kingdoms of Malabar, as late as the seventeenth century, the right of succession was transmitted through the mother; a princess could also, if she pleased, marry an inferior.[1082] Custom still designated as brothers to each other the children either of two brothers or two sisters, but the children of the brother and of the sister were only german cousins.[1083] Certain families never made any partition, thus preserving the custom of the ancient familial clan.[1084] Wherever feminine filiation prevailed, it was the sister’s son who succeeded the defunct Rajah.[1085] So also in the eastern part of Ceylon, the property was transmitted to the sister’s son, to the exclusion of the sons.[1086] To conclude, I will mention the custom, also very widely spread in India, of not marrying a woman of the same name.
We must beware of exaggerating the value of these partial facts; they permit us, however, to infer that in certain parts of India, and especially among the Tamils, the family has at first been maternal, and has slowly evolved from the primitive clan.
The chief object of this book being to study the evolution of the family and of marriage, I need not describe in detail the Greco-Roman family, which has, besides, served as a theme for so many writers. It certainly appears, contrary to the opinion of the Romans themselves, to have emerged tardily enough from the primitive clan or gens. This Roman gens was composed, really or fictitiously, of consanguine individuals, living under an elected chief, and having the same name. The union of several gentes formed the curia or the phratry. Grouped together, the phratries or curiæ constituted tribus. And lastly, the assembly of the tribus formed the nation: Rome or Athens.[1087] It is therefore the clan, or gens, and not the family, which has been at Rome, and at Athens the cellule, according to the fashionable expression, of ancient society.
At the dawn of history, these clans were already agnatic; they had adopted paternal filiation, and each of them claimed a common masculine ancestor; but the right of the gens to the heritage, and in certain cases the possession of an ager publicus, still proved the antique community of property; and a number of indications and traditions bore witness in favour of the existence of a prehistoric phase of the maternal family, preceding agnation. Bachofen goes much further, and not without a show of reason. He insists, for example, that kinship in the Latin clan may at first have been confused. He alleges, on this point, that in the time of Numa the word parricide signified, not the murder of a father, but that of a free man of some sort; that in the family tribunal the cognates of the wife figured, and that the cognates wore mourning for each other; that the cognates of the wife, and those of the husband of a wife, had over her the jus osculi, or the right of embracing her, etc.; lastly, that the Etruscan Servius, the founder of plebeian liberty, was conceived, says the legend, during a great annual festival, when the people reverted to primitive sexual disorder.[1088]
The Greek γένος resembled the Roman gens. Its members had a common sepulture, common property, the mutual obligation of the vendetta, and an archon.[1089]
In the protohistoric clans of Greece maternal filiation was first of all established. The Cretans said motherland (μητρίς), and not fatherland (πατρίς). In primitive Athens the women had the right of voting, and their children bore their name—privileges which were taken from them, says the legend, to appease the wrath of Neptune, after an inundation.[1090] Tradition also relates that at Athens, until the time of Cecrops, children bore the name of their mother.[1091]
Among the Lycians, says Herodotus, the matriarchate endured a long time, and the children followed the status of their mother. Uterine brothers were carefully distinguished from german brothers for a long period in Greece; the former are called ὁμογάστριοι in Homer, and the latter ὄπατροι; and uterine fraternity was regarded as much more close. Lycaon, pleading with Achilles, says, in order to appease him, that he is not the uterine brother of Hector.[1092] At Athens and Sparta a man could marry his father’s sister, but not his mother’s sister.[1093] In Etruria the funeral inscriptions in the Latin language make much more frequent mention of the maternal than the paternal descent. Sometimes they mention only the name of a child and that of his mother (Lars Caius, son of Caulia, etc.); sometimes they indicate the father’s name by simple initials, whilst that of the mother is written in full.[1094]
As in so many other countries, the paternal family succeeded the maternal family in the ancient world, but not without difficulty. To begin with, the fact of marriage did not suffice alone to establish paternal filiation; the declaration of the father was necessary, as well in Greece as in Rome. In his Oresteia, Æschylus puts in opposition before Minerva the old maternal right and the new paternal right. The chorus of the Eumenides, representing the people, defends the ancient customs; Apollo pleads for the innovators, and ends by declaring, in a fit of patriarchal delirium, that the child is not of the blood of the mother. “It is not the mother who begets what is called her child; she is only the nurse of the germ poured into her womb; he who begets is the father. The woman receives the germ merely as guardian, and when it pleases the gods, she preserves it.” The Orestes of Euripides takes up the same theory when he says to Tyndarus—“My father has begotten me, and thy daughter has given birth to me, as the earth receives the seed that another confides to it; without a father, there could be no child.” These patriarchal theories naturally consecrated the slavery of woman. The laws of Solon still recognised the right of women to inherit, in default of paternal relations of the male sex, to the fourth degree, but in the time of Isæus the law refused to the mother any place among the heirs of her son.[1095]
In fact, throughout the historic period the Greco-Roman world is patriarchal. In Greece and at Rome woman is despised, subjected, and possessed like a thing; while the power of the father of the family is enormous. It is especially so at Rome, where, nevertheless, the family is not yet strictly consanguineous, for it includes the wife, children, and slaves, and where agnation has for its basis the patria potestas. “All those are agnates who are under the same paternal power, or who have been, or who could be, if their ancestor had lived long enough to exercise his empire.... Wherever the paternal power begins, there also begins kinship. Adoptive children are relations.... A son emancipated by his father loses his rights of agnation.”[1096] At the commencement of Roman history, we see, therefore, clans, or gentes, composed of families, of whom some are patrician—that is, able to indicate their agnatic lineage—and the others plebeian. The “justæ nuptiæ” are for the former; the latter unite without ceremony, more ferarum. The family is possessed by the pater familias; he is the king and priest of it, and becomes one of its gods when his shade goes to dwell among the manes. In this last case, the family simply changes masters; “the nearest agnate takes the family,” says the law of the Twelve Tables. Something very similar existed in Greece, for we have seen that at Athens the right of marrying their sisters, left to brothers who were heirs, was not even exhausted by a first marriage.[1097] The institution of individual, or rather familial property, that of masculine filiation, and of patriarchal monogamy, dismembered the gens, which at length became merely nominal. The law of the Twelve Tables, however, still decides that the succession shall be vacant if, at the death of the father, the nearest agnate refuses to “take the family,” and in default of an agnate the gentiles shall take the succession. The nominal gens persisted for a long time in the ancient world; thus every Roman patrician had three names—that of his gens, that of his family, and his personal name.[1098] At Athens, in the time of Solon, the gens still inherited when a man died without children.
The long duration of Greco-Roman society enables us to follow the whole evolution of the family in it. It would be going beyond the facts to affirm the existence of a still confused consanguinity in the ancient gens; but it seems very probable that this gens first adopted the maternal and then the paternal family, which last became somewhat modified, in the sense of the extension of feminine rights. This extension was slow, and it was not till the time of Justinian that equal shares were given to sons and daughters in succession, or even that widows were entrusted with the care of their children.
VII. The Family in Barbarous Europe.
Organisation into clans more or less consanguineous, then into phratries and tribes, seems natural in many primitive societies; and outside the Greco-Roman world the barbarous populations of Europe had all adopted it. In these clans, has kinship begun by being confused? Has exogamy prevailed? On these particular points precise information is wanting; doubtless evolution cannot everywhere have been uniform. One thing is, however, certain, namely, that the Celtic populations have preserved the institution of the clan much longer than any others. In Wales and Ireland the clan was still the social unit; it was responsible for the crimes of its members, paid the fines and received the compensations. In Ireland, and surely elsewhere, there was an ager publicus allotted amongst the members of the clans. Individualism prevailed in the end, as it did everywhere. A certain portion of the common soil, reserved in usufruct for the chiefs, was at last seized by them as individual property; but all the members of a clan were reputed as of kin, and at a man’s death his land was allotted by the chief amongst the other families of the clan or sept.[1099] These clans, however, were anything but exogamous, if we may believe Strabo, who affirms that the ancient Irish, like the Mazdeans, married, without distinction, their mothers and sisters.[1100] Irish marriage had in no way the strictness of the Roman marriage; temporary unions were freely allowed, and customs having the force of law safeguarded the rights of the wife.[1101] Other European barbarians, on the contrary, were exogamous, and prohibited under pain of severe punishment, as whipping or drowning, marriage between members of the same clan.[1102] The mir of the southern Slavs may be considered as a survival of these ancient barbarous clans, sometimes endogamous, sometimes exogamous.
In becoming subdivided into families, have these little primitive clans adopted maternal filiation? This is possible; but when they came in contact with the Roman world the greater number had already the paternal family. Let us notice, however, that the Irish law, far from subjecting the mother, accorded her a position equal to that of the father.[1103] Let us also recall the following passage of Tacitus[1104] à propos of the Germans: “The son of a sister is as dear to his uncle as to his father; some even think that the first of these ties is the most sacred and close; and in taking hostages they prefer nephews, as inspiring a stronger attachment, and interesting the family on more sides.” We may add to this that in Germany the mother could be the guardian of her children;[1105] that the Salic law, non emendata, admitted to the succession, in default of children, the father and mother, the brothers and sisters, and then the sister of the mother in preference to that of the father. Let us remember, also, that in Slav communities women have a right to vote, and may be elected to the government of the community;[1106] but this is still a long way off the matriarchate, or even uterine filiation. The Saxon law (tit. vii.), the Burgundian law (tit. xlv.), and the German law (tit. lvii. and xcii.) only admit women to the succession in default of male ascendants; the law of the Angles prefers paternal agnates, even to the fifth degree, before women.
To sum up, there are only two precise testimonies that may be quoted in favour of the ancient existence of maternal filiation among the barbarians of Europe—that of Strabo, relating to the Iberians; and the case of the Picts, amongst whom the lists of kings show that fathers and sons had different names, and that brothers succeeded instead of sons.[1107] From this absence, or rather rarity, of proofs in favour of the ancient existence of the maternal family among the barbarians of Europe, must we conclude that it has never existed? Not at all; we can only say that this ancient filiation is possible, and even probable, but as yet insufficiently established.
What cannot be disputed is, that always and everywhere peoples who are in process of civilisation have adopted the paternal family, according even excessive powers to the father of the family. What is probable is, that in the majority of cases paternal filiation has succeeded to maternal filiation and to more or less confused familial forms. Is this paternal or even patriarchal family the final term of familial evolution? Has evolution, never as yet arrested in its course, said its last word in regard to marriage and the family?