A History of Matrimonial Institutions, Vol. 1 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 1 of 3
Howard, George Elliott
Families; Marriage -- History
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]
[8] MARQUARDT, _Das Privatleben der Römer_, I, 1.
The theory is also held by BLUNTSCHLI, _Theory of
the State_, 182-89; SCHRADER, _Sprachvergleichung
und Urgeschichte_, 391-95; LEIST, _Alt-arisches
Jus Gentium_, 113; MÜLLER, _Handbuch der klass.
Alterthumswissenschaft_, IV, 18-20; GILBERT, _Handbuch
der griech. Staatsalterthümer_, II, 302; MAINE, _Village
Communities_, 15 ff.; _Ancient Law_, 118 ff.; _Early Law and
Custom_, chap. iii; FUSTEL DE COULANGES, _Ancient
City_, 111 ff.; GROTE, _History of Greece_, I, 561;
THÜMSER, _Die griech. Staatsalterthümer_, 28 ff.
[9] PLATO, _Laws_, Book III, 680, 681: JOWETT,
_Dialogues_, IV, 209; ARISTOTLE, _Politics_, Book
I, 2 ff.: JOWETT, I, 2 ff. These are followed by
CICERO, _De Officiis_, I, 17.
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