APIUI.M, t685.]'
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the kinds of kinship recognized in primitive society. First, then, kinship by consanguinity and kinship by affinity are clearly distinguished. Then kinship by consanguinity, or 'cognation,' as designated in Roman law, is divided into parts. The consanguineal kindred of any given person may constitute a large body. There may be selected from this body all of those persons whose kinship may be traced exclusively through males. Such kinship was called by the Romans 'agnation,' and the body of included kindred, -agnates.' From the same body of cognates there may be se- lected all those who can trace their kinship exclusively through females. Let such kinship be termed 'enation,' and the body thus con- stituted, 'enates.' The agnates and enates together constitute but a part of the whole body of consanguine! or cognates. In all tribal society, either the agnates or the enates are clearly distinguished from the other cog- nates, and ot^anized into a body politic, usually called the clan or gens.
Maine holds in that primitive society agna- tion was the only kinship recognized, and that enation is an accidental and infrequent derivative; that the true course of kinship development is from station to ct^^iation. McLennan holds that in primitive society enation only was known; that agnation is an accidental and infrequent derivative; and that, the true course of evolution is from enation to cf^nation. The fact is, that cognation, including enation and agnation, is primitive; that is, that no society has yet been dis- covered among the savage tribes still living on the globe, or in recorded history, that has not recognized cognation in its different brancbcs; and in all cases ilifferent kinds of kinship have been used for diti'erent organizing purposes.
In the simplest form above mentioned, where the group conatiLuling a tribal sUite is organ- ized into sub-groups, sometimes the higher group is bound together by atlinity and general cognation, while the smaller gi'oup has a kin- ship bond of enation. And, again, sometimes the higher group is bound together by affinity and general cognation, while the smaller group is organized on agnation. In either case, the tribal bond is alfinity with cognation; and in like manner the clan bond is either (^nation or enation. The evidence that cognation has been recognized in all tribal jwoplcs, is com- plete. Not a single tribe has yet been found to ignore it in its social organization; and, in every language that has been investigated, kin- ship terms for it are discovered. The real
��question, therefore, is not whether agnation or enation is the more primitive, but whether ag-i natic kinship or enatic kinship was the tie which bound tc^elher the members of a clan or smaller group in the tribal oiganization. Sir Henry Maine and the McLennan brothers alike have failed to discover this, one of the most patent facts concerning primitive institutions; and this failure has led both parties into ihe most radical errors.
There is another institutional principle which seems to be primordial; at any rate, it is every- where woven into primitive custom-law. This principle will here be called ' eldci-rule.' It would seem that primitive men in the savage state, groping for some means to prevent con- troversy and secure peace, hit upon the very obvious expedient of giving authority to the elder; so that, in all the i-elations of life, superior age should confer authority.
There are thus two primordial principles in early law: the first is that kinship by affinity and consanguinity is the bond of society; and the second is that authority inheres in the elder. These two principles have been worked out in many and diverse ways, and about them have gathered many l^al fictions; but they were primordial, and have been universal down the whole course of history, including the highest civilization; so that even now aOlnily and consanguinity, both agnatic and enatic, together with elder-rule, still continue, — the one as the liond of the civilized family, and the other as its rule of authority. But the history of the application of these principles is long ajid varied.
The Roman patriarchate was defined by agnation; and the gronp was a body whose kinsliip was reckoned only through males, and over whom the patriarch, who was the highest male ascendant, was the ruler. This ruler had despotie power. He owned his wife, and by legal fiction reckoned her as the elder sister of his dauglitcrs. He also owned his sons, and hia sons' wives, and their children, and was the owner or custodian of all the property be- longing to the group. This is patriu poteatag. The patriarchy, therefore, is a despotic form of elder-rule exercised by the eldest ascendant aver a group of agnatic descendants. On the death of the patriarch, the group was dismem- bered into as many parts as there were sons with families. The patriarchal group, there- fore, was dissolved and re-organized with every passing generation.
There is another form of elder-rule, which I shall denominate ' presbiarchy.' in which the ruler is the oltlest man of the kinship group.
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