to be an original jus necisque may possibly be found in the ancient practice of sacrificing children to the deity. But the full exercise of patria potestas, if it ever did exist, was soon checked by public opinion, later incorporated in the book of Deuteronomy. Parents may chastize their children, but not inflict capital punishment upon them. A stubborn son is to be brought to the elders of his respective city and then stoned to death by the members of the community. The intermediary position of the 'courts,' whatever their jurisdiction in such a case, had a tendency to bring about a milder form of paternal power than among the Romans.

There are but few traces of a rigid type of patria potestas among the ancient Arabs. In a state of society where marriage does not involve the transfer of the woman to the stock or kin of her husband, the status of women would naturally be superior to that of women in manu as in the case of Roman law. This will explain why the husband could not exercise the power of life and death over his wife as he might over a slave, for instance. A returning huntsman, observing from a distance that two of his wives were engaged in a deadly combat, shot an arrow in the direction of the two combatants with the intention of deterring them. One of the women was accidentally killed, and the man was obliged to make compensation to her family."

Judg. 11: 30-34; Gen. 22: 1-13, et al.

Prov. 19: 18.

Deut. 21: 18-21.

'Procksch, Uber die Blutrache bei den vorislamischen Arabern und Muḥammads Stellung zu ihr, p. 61.

As regards the status of sons, patria potestas was recognized up to a certain point among the Meccans and the people of Medina.10 In Mecca the father's authority even extended over sons of a marriageable age and capable of bearing arms. This much was insisted upon by the Quraysh before making a compact with the prophet of Allah. It was for the father to determine the religion of his grown-up sons, the latter having little or no choice in the matter. But this state of dependence practically ceases as soon as the son advances to the rank of a property holder. Release from paternal power is secured by the son of Sa'd ibn Ubada after receiving a portion of his father's estate. The possession of property is a necessary prerequisite to the full enjoyment of the rights of citizenship.

By virtue of his authority, the paternal head of the family might also repudiate a grown-up son in order to please the young man's stepmother. The father, moreover, had power to impose the status of marriage on his minor children. Among the Hanifites of Turkey and Central Asia the right of jabr11 terminates with puberty.12 Shafi'ite law,13 on the other hand, declares that daughters shall be subject to the authority of the father until they are married, regardless of whether or not they had previously attained the age of puberty.14

Parental authority is strongest in commercial centres like Mecca and Medina. It is weakest in

10 Ehe, 459.

11'the right of imposing the status of marriage on minor children.' 12 Usually the fifteenth year.

13 i. e., in Syria and Lower Egypt.

14 Syed Ameer Ali, Muḥammadan Law, II, 236.

the desert where "the principle of uncontrolled individualism is only kept in check by the imperious necessity for mutual help against enemies which binds together, not individual families but the whole hayy,15 not kinsmen within certain degrees but the whole circle of common blood.""16 Nothing but the pressure of public opinion could succeed in establishing the claims of a mild type of paternal power. In a footnote of his second edition of Kinship and Marriage Robertson Smith further remarks: "Parental authority is so weak that a chief who wishes his only son to divorce a barren wife has first to vow that he will never speak to him, and then to call in all the elders and warriors of the clan to persuade him. ''17

Paternal rights were recognized in Babylonia to an extent even greater than in Israel or Arabia. Though less despotic in its nature, the father's authority over the members of his family may be said to approximate the rights and privileges of the pater familias of ancient Rome. Thus in the preSemitic or Sumerian period a rebellious son may be sold into slavery by his father: "If a son say to his father, "Thou art not my father, "18 he may brand him, lay fetters upon him, and sell him for silver" (as a slave).19 The same principle is subsequently extended with some limitation to all members of the

15clan.'

16 Kinship, 68.

17 Ibid., loc. cit.

19 ul abi atta.

19 Cf. Series Ana Ittishu, Tablet 7, Col. III, 11. 22 f.

family in case of debt: "If a man be in debt and sell his wife, son or daughter, or bind them over to service, for three years they shall work in the house of their purchaser or master; in the fourth year they shall be given their freedom."'20

According to the old Sumerian Family Laws the father has power to repudiate and disinherit a son without further notice. The simple formula: "Thou art not my son' having once been pronounced by the father, 'the son shall leave house and walled enclosure' immediately. This law reappears in a modified form at a time when the counteracting influences of Semitic individualism as embodied in the legislation of Babylonia's greatest and most distinguished ruler and law-giver, Hammurabi, began to assert themselves. The Code insists on legal process in the case of alleged insubordination on the part of a son: "If a man set his face to disinherit his son and say to the judges: 'I will disinherit my son,' the judges shall inquire into his antecedents, and if the son have not committed a crime sufficiently grave to cut him off from sonship, the father may not cut off his son from sonship.""21 Punishment shall be suspended, provided it be the delinquent's first offense, but if he commit a grave crime a second time, the father may cut off his son from sonship. 22 For assault and battery on a father more stringent measures are adopted: 'If a son strike his father, they shall cut off his hands. "23

Moreover, the father was at liberty to make over a gift by written deed to a favorite son. 'If a man present field, garden or house to his son, the first in his eyes,24 and write for him a sealed deed, after the father dies, when the brothers share, he shall take the present which the father gave him, and over and above shall share equally with them in the goods of his father's estate. '25 The father's right to select a bride for his son is absolute and indisputable. This we learn from a law-suit in the time of Cyrus. To insure the legality of a marriage contract the consent of the bridegroom's father must be obtained, otherwise the marriage is either annulled or the daughter-in-law reduced to the level of a concubine.26

The way is now open for a discussion of the patriarchal family and its constituent members. Theoretically such a family was composed of the actual descendants of the father. Under the pressure of circumstances, however, the expedient of adoption was resorted to by which outsiders were admitted into the membership of the group. The rights and privileges thus conferred will be taken up in their proper place.

Once more we shall have to run counter to a statement made by Sir H. Maine with regard to the property rights of the head of the patronymic group; since all those dependent on the patriarchal head belong in the same category as all other possessions

26 Kohler and Peiser, A.B.R. II, 7 f.; Johns, B.A.L.C.L., 137.