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.
IV. The Family in Persia.
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.
V. The Family in India.
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.