seems well attested, that relationship was traced only in the female line for many ages, points to the further fact that a family based on the relationship of children through the apparent and proven fact of the mother, was created before the mother became tied to a particular man. So the family kinship was a kinship wholly through the mother. Whether the first type of family consisted of a woman with several husbands or several women and several men promiscuously united in one family, or whether the family consisted simply of a mother and children will probably never be determined. It should be apparent that the development of the idea of the kindred was a great step in itself. Its tendency to create sentiments of sympathy and affection could not but make it a strong civilizing element. Especially strong would be the effect of the idea of the kindred, along with increasing the number of objects of acquisition, in spreading the idea that property belongs to the kindred; and thus advancing mankind found the tribes dividing into matriarchal families with well defined rights of ownership in particular objects of property.
If we keep in mind that the ineradicable tendency of human beings is to continue social habits long after reasons for a change have arisen, and also that the ideas of chastity, fidelity, and jealousy took long ages to come into existence, we should conclude that probably promiscuity, as we have defined it above, continued long after the family of a kindred came into existence. This would account for the long ages of the prevalence of the matriarchal family where the mother rules the family and a father has no part. There is no question as to this fact. Basques in northern Spain and southern France, a very primitive race, show strong traces of this ancient mother-headed and mother-ruled family. The legal rule that relationship and succession to the family estate belonged wholly to relatives through the mother and that any relationship through the father was not recognized settles the question.
In the end, however, the instinct to propagate uniting with the instinct which was just as strong, to protect the children, joined to the acquired knowledge of paternity, would lead to some form of permanent union of man and woman. In no other way could the father’s right in the children be preserved. The curious fact is that the family of the woman, of which her brothers formed a part, was clearly established before any fixed marital union existed. And long after permanent marriages existed, the husband was a mere skulker on the outside of the family, with no authority and no place in the family, and with little if any right in the family property. It is apparent that as soon as the idea of a kindred developed and the tribe became made up of different kindreds, a more complicated stage of human existence had been reached. It is probable that this stage was reached when men were hunters. A woman or several women who were sisters with their brothers would form a natural unit, and the property ownership of such a family would be extended to the game, as a means of support for the family.
In the passage to the nomad stage the flocks and herds would thus become family property. But the idea that men fought for their women with club and nail in their caves seems rank nonsense when applied to a stage of human life where no such sentiments as chastity or fidelity in the woman, or jealousy in the man, existed and the customs or laws were based on a matriarchal family.
There is another reason for the development of the patriarchal family than the one of acquired knowledge of paternity. Women were captured in tribal fighting, and the captive necessarily belonged to the one who took her. Or women were stolen from another tribe from a cause that should here be stated. Property in women and their children would arise. Without speculating on reasons, it is enough to state the fact that among the tribes who passed on their laws to civilized men a custom arose that men must not marry within their own kindred. In the matriarchal stage it seems plain why such a custom might arise, since all the children were brothers, all the uncles were fathers, and all the aunts were mothers. The old and feeble, of course, caused no trouble; they were brutally abandoned and, if not killed, were left to die. This original type of marriage is the so-called marriage outside the kindred or tribe, called exogamous, which probably began with the development of kindreds. On the other hand, the effects of capturing women with the resultant fighting would at least compel the weaker tribes to interdict the capture, and to insist that marriage should take place only with other kindreds in the tribe, and thus would arise the marriage within the tribe, called endogamous marriage. This would lead directly to the marriage by purchase.
In this stage of society, three forms of customary law had their beginnings. As a habit arising from doubtful fatherhood, the children were required, at some stage of development, to be acknowledged by the father, and in consequence the newborn child was at his disposal to kill or to let live. The hideous practice of infanticide has been given other origins, but they do not seem to be as reasonable as the one that the newborn child was at the father’s disposal. The direct inherited connection of such a right with a former stage of promiscuity is apparent. Whatever the explanation may be, the practice is fully established, and among the dark shadows cast in that former brutish life of man, none are so dark as those arising from infanticide, especially of the female children. Men continued it into the half-civilized stage and it passed into human sacrifice. In the pastoral age, male children were more valuable. But the father’s power of life and death over his children is a fixed fact of the patriarchal family.
With the institution of marriage came the development of a large body of custom as to different kinds of marriage. Marriage by capture and marriage by purchase, with all the other regular and irregular unions, need not delay the story. We may remark in passing that trial marriages, which certain childishly minded persons now advocate, were tried in the savage state among the Scotch, the Scandinavians, the Celts, and the Germans.
Gradually the change into the form of family where the husband was the head of the family led to the right to participate in and succeed to the family property being confined to the male line. This passage to the type of family where the male was the head and only relationship through males was recognized by the laws, probably belongs to the nomad or pastoral stage, for the nomadic life would necessarily lead to separations into families, and the natural physical superiority of the male would come into play. It is a curious fact that in Latin the general term for blood-kindred, cognati, originally indicated relationship through the female, although it came to mean any blood relationship, while the later word, agnati, denoted relationship purely in the male line. How this patriarchal family, with the father as the head of the family, further developed, will be more properly noticed later on, but to the savage stage of doubtful paternity belongs the curious custom of the couvade, where the husband took to his bed and simulated the process of his giving birth to the newborn child. He felt that he must make some proof that the child was his own by public proclamation of his labor. Legal fictions come down from a very remote past.
When marital unions became fixed, the physical superiority of the male, uniting with his other instincts, would sometimes lead to the condition of a man with several mates. But it is always to be borne in mind that a polygamous family would be the exception, not the rule, on account of the inability of the average man to support more than one household. The working of this rule was seen among the Mormons in late years, where only a small proportion of the heads of families were polygamists. As soon as this possession of the female happened there was an opportunity to develop the ideas of chastity and fidelity, with a feeling of jealousy on the part of the male. The reaction of these new phases of life on the law are apparent, and into the law enters the institution of the male’s exclusive possession of the female with her enforced fidelity. The woman now could become guilty, along with her paramour, of the capital crime of adultery.
The clan or tribe thus had become divided into numbers of families, first matriarchal and later patriarchal families. But these men who had always lived in social communities had become accustomed to the fact that one tribe was responsible as a whole to another tribe for any injury by a member of one tribe to a member of the other tribe. Hence in the development of the family, however it was developed, the one kindred or family was responsible to another kindred or family for any injury by a member of the one family to a member of the other family. It resulted from the social life that these primeval men could not think in terms of the individual. They clung to their ancestral ways and habits of thought. All law was drawn in the form of responsibility of one kindred for all its
