Ancient Law Chapter 5

annals of Rome. Anciently， there were three modes in which marriage might be contracted according to Roman usage， one involving a religious solemnity， the other two the observance of certain secular formalities. By the religious marriage or Confarreation； by the higher form of civil marriage， which was called Coemption； and by the lower form， which was termed Usus， the Husband acquired a number of rights over the person and property of his wife， which were on the whole in exces

s of such as are conferred on him in any system of modern jurisprudence. But in what capacity did he acquire them？ Not as Husband， but as Father. By the Confarreation， Coemption， and Usus， the woman passed in manum viri， that is， in law she became the Daughter of her husband. She was included in his Patria Potestas. She incurred all the liabilities springing out of it while it subsisted， and surviving it when it had expired. All her property became absolutely his， and she was retained in tutelage after his death to the guardian whom he had appointed by will. These three ancient forms of marriage fell， however， gradually into disuse， so that， at the most splendid period of Roman greatness， they had almost entirely given place to a fashion of wedlock —— old apparently but not hitherto considered reputable —— which was founded on a modification of the lower form of civil marriage. Without explaining the technical mechanism of the institution now generally popular， I may describe it as amounting in law to little more than a temporary deposit of the woman by her family. The rights of the family remained unimpaired， and the lady continued in the tutelage of guardians whom her parents had appointed and whose privileges of control overrode， in many material respects， the inferior authority of her husband. The consequence was that the situation of the Roman female， whether married or unmarried， became one of great personal and proprietary independence， for the tendency of the later law， as I have already hinted， was to reduce the power of the guardian to a nullity， while the form of marriage in fashion conferred on the husband no compensating superiority. But Christianity tended somewhat from the very first to narrow this remarkable liberty. Led at first by justifiable disrelish for the loose practices of the decaying heathen world， but afterwards hurried on by a passion of asceticism， the professors of the new faith looked with disfavour on a marital tie which was in fact the laxest the Western world has seen. The latest Roman law， so far as it is touched by the constitutions of the Christian Emperors， hears some marks of a reaction against the liberal doctrines of the great Antonine jurisconsults. And the prevalent state of religious sentiment may explain why it is that modern jurisprudence， forged in the furnace of barbarian conquest， and formed by the fusion of Roman jurisprudence with patriarchal usage， has absorbed， among its rudiments， much more than usual of those rules concerning the position of women which belong peculiarly to an imperfect civilisation. During the troubled era which begins modern history， and while the laws of the Germanic and Sclavonic immigrants remained superposed like a separate layer above the Roman jurisprudence of their provincial subjects， the women of the dominant races are seen everywhere under various forms of archaic guardianship， and the husband who takes a wife from any family except his own pays a money-price to her relations for the tutelage which they surrender to him. When we move onwards， and the code of the middle ages has been formed by the amalgamation of the two systems， the law relating to women carries the stamp of its double origin. The principle of the Roman jurisprudence is so far triumphant that unmarried females are generally （though there are local exceptions to the rule） relieved from the bondage of the family； but the archaic principle of the barbarians has fixed the position of married women， and the husband has drawn to himself in his marital character the powers which had once belonged to his wife's male kindred， the only difference being that he no longer purchases his privileges. At this point therefore the modern law of Western and Southern Europe begins to be distinguished by one of its chief characteristic， the comparative freedom it allows to unmarried women and widows， the heavy disabilities it imposes on wives. It was very long before the subordination entailed on t

he other sex by marriage was sensibly diminished. The principal and most powerful solvent of the revived barbarism of Europe was always the codified jurisprudence of Justinian， wherever it was studied with that passionate enthusiasm which it seldom failed to awaken. It covertly but most efficaciously undermined the customs which it pretended merely to interpret. But the Chapter of law relating to married women was for the most part read by the light， not of Roman， but of Canon Law， which in no one particular departs so widely from the spirit of the secular jurisprudence as in the view it takes of the relations created by marriage. This was in part inevitable， since no society which preserves any tincture of Christian institution is likely to restore to married women the personal liberty conferred on them by the middle Roman law， but the proprietary disabilities of married females stand on quite a different basis from their personal incapacities， and it is by keeping alive and consolidating the former that the expositors of the Canon Law have deeply injured civilisation. There are many vestiges of a struggle between the secular and ecclesiastical principles， but the Canon Law nearly everywhere prevailed. In some of the French provinces married women， of a rank below nobility， obtained all the powers of dealing with property which Roman jurisprudence had allowed， and this local law has been largely followed by the Code Napoleon； but the state of the Scottish law shows that scrupulous deference to the doctrines of the Roman jurisconsults did not always extend to mitigating the disabilities of wives. The systems however which are least indulgent to married women are invariably those which have followed the Canon Law exclusively， or those which， from the lateness of their contact with European civilisation， have never had their archaisms weeded out. The Scandinavian laws， harsh till lately to all females， are still remarkable for their severity to wives. And scarcely less stringent in the proprietary incapacities it imposes is the English Common Law， which borrows far the greatest number of its fundamental principles from the jurisprudence of the Canonists. Indeed， the part of the Common Law which prescribes the legal situation of married women may serve to give an Englishman clear notions of the great institution which has been the principal subject of this chapter. I do not know how the operation and nature of the ancient Patria Potestas can be brought so vividly before the mind as by reflecting on the prerogatives attached to the husband by the pure English Common Law， and by recalling the rigorous consistency with which the view of a complete legal subjection on the part of the wife is carried by it， where it is untouched by equity or statutes， through every department of rights， duties， and remedies. The distance between the eldest and latest Roman law on the subject of Children under Power may be considered as equivalent to the difference between the Common Law and the jurisprudence of the Court of Chancery in the rules which they respectively apply to wives.

　　If we were to lose sight of the true origin of Guardianship in both its forms and were to employ the common language on these topics， we should find ourselves remarking that， while the Tutelage of Women is an instance in which systems of archaic law push to an extravagant length the fiction of suspended rights， the rules which they lay down for the Guardianship of Male Orphans are an example of a fault in precisely the opposite direction. All such systems terminate the Tutelage of males at an extraordinary early period. Under the ancient Roman law which may be taken as their type， the son who was delivered from Patria Potestas by the death of his Father or Grandfather remained under guardianship till an epoch which for general purposes may be described as arriving with his fifteenth year，。 but the arrival of that epoch placed him at once in the full enjoyment o

f personal and proprietary independence. The period of minority appears therefore to have been as unreasonably short as the duration of the disabilities of women was preposterously long. But， in point of fact， there was no element either of excess or of shortcoming in the circumstances which gave their original form to the two kinds of guardianship. Neither the one nor the other of them was based on the slightest consideration of public or private convenience. The guardianship of male orphans was no more desired originally to shield them till the arrival of years of discretion than the tutelage of women was intended to protect the other sex against its own feebleness. The reason why the death of the father delivered the son from the bondage of the family was the son's capacity for becoming himself the head of a new family and the founder of a new Patria Potestas； no such capacity was possessed by the woman and therefore she was never enfranchised. Accordingly the Guardianship of Male Orphans was a contrivance for keeping alive the semblance of subordination to the family of the Parent， up to the time when the child was supposed capable of becoming a parent himself. It was a prolongation of the Patria Potestas up to the period of bare physical manhood. It ended with puberty， for the rigour of the theory demanded that it should do so. Inasmuch， however， as it did not profess to conduct the orphan ward to

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