[80] MCLENNAN, _Patriarchal Theory_, 120-31; _Studies_, I, 68 ff., 118; GIRAUD-TEULON, _Les origines, etc._, 329-32; KOVALEVSKY, _Tableau_, 31, 32; MAINE, _Early Hist. of Inst._, 216 ff., _passim_.
[81] The South Slavonian house community is an early institution; see KRAUSS, _Sitte und Brauch der Südslaven_, 2 ff., 64-128; BOTSFORD, _op. cit._, 12-21; GIRAUD-TEULON, _op. cit._, 340, 341; MCLENNAN, _op. cit._, 71-119; MAINE, _Ancient Law_, 118; _Early Law and Custom_, 232-82. But it is not primitive. KOVALEVSKY, _Mod. Customs and Anc. Laws of Russia_, chaps. i, ii, finds many survivals, as he believes, of an earlier maternal system of kinship and succession.
[82] The question for the Germans will be again referred to; see chap. vi, below.
[84] Such is the view of MCLENNAN, _Patriarchal Theory_, 136-40, 181 ff., 205 ff., 214, 260-62, where Maine's theory of agnation is criticised.
[85] "The last vestiges of the two disappeared from the law together. But, in fact, agnation went first. The paternal powers were susceptible of abridgment and restriction in various ways short of extinction. The wife might become free from them; the children also; and yet they might remain for the slaves. And it was thus gradually that they perished. But agnation is perfect, or it ceases to be agnation. And the moment the ties of blood through women received civil effects agnation was no more."--_Patriarchal Theory_, 182. On the decay of agnation and _patria potestas_ see SOHM, _Institutes_, 357, 358, 389-93, 438-47; PUCHTA, _Institutionen_, II, 18, 384 ff., 431 ff., 457 ff.; MUIRHEAD, _Introduction to the Private Law of Rome_, 422 ff., 343-49; MAINE, _Ancient Law_, chap. v; MOREY, _Roman Law_, 78, 129, 150, 240-43, 248.
Furthermore, in addition to the historical difficulty, there is another strong reason for doubting the dependence of agnation upon _patria potestas_: the inconsistency of the latter in its effects upon kinship. If the descendants of married women are excluded from relationship, solely on the ground that they belong to another _potestas_, why, for the same reason, should not the children of men, say of brothers _sui juris_,[86] be likewise mutually excluded? Plainly some more satisfactory explanation of this remarkable discrimination between the sexes must exist. Such an explanation McLennan finds in exogamy, or the custom which forbids marriage between persons of the same group of acknowledged kindred.[87] It seems probable that in early times the patrician family was coextensive with the _gens_. _Agnatio_ and _gentilitas_ were equivalent expressions.[88] During the historical period, at any rate, _gentilitas_ is traced through the male line; and it is not impossible that originally inter-marriage was forbidden between those bearing the same gentile name.[89] In that case, agnation appears as the natural result of the gentile rule of exogamy, retained, after the weakening of the _gens_, for the regulation of succession within the family. Exogamy, however, does not necessarily imply the _patria potestas_, but is found more frequently perhaps with the maternal than with the paternal system of kinship.[90] In fact, for the Romans and kindred Italic tribes, considerable evidence has been collected by various writers pointing, as they believe, to an early transition from the maternal to the cognatic or the agnatic system.[91] While this conclusion may be rejected, it must nevertheless be admitted that criticism of the patriarchal theory has been very successful in its general results. It appears to have established beyond question the complex and highly artificial character of the Roman family.[92] So far from being the type of early social organization, it is seen to be relatively modern and ill fitted to the condition of primitive men.