"Les given in marriage to a man whom she did not know.1 femmes, à Athènes," says M. Cauvert, "ne devaient jamais choisir elles-mêmes leur époux, toujours il leur était désigné par le tuteur que la loi leur donnait."2 At Sparta, as well as at Athens, the betrothal of the bride by her father or guardian was requisite as an introduction to marriage.3 Among the Teutons, the father certainly had the power to expose or sell his children under age, but an adult son could put his infirm and aged parents to death.* "Quelle que soit la ressemblance des deux institutions," says M. Laboulaye, " on ne peut pas confondre la puissance paternelle (patria potestas) des Romains et la puissance paternelle des barbares, le mundium." Far from being, as in Rome, a power throughout life, the mundium over a son ceased as soon as he was able to shift for himself.6 M. Pardessus asserts that, at any rate in the fifth and sixth centuries, such paternal authority as a Roman father exerted did not exist among the Franks; and an old commentator says that, "by the law of the Langobardi, children are not under the 'power' of the father." Nevertheless, the mundium among this people was more severe than among any other of the Teutonic nations. The extent of the father's rights in earlier times, when the Teutons had no written laws, we do not definitely know; but, according to 9 8 7 Tacitus, a house-father had not unlimited power even over his slaves; so it is impossible to believe in the prevalence of a patria potestas of the Roman type among them. In choosing a wife, however, the men had apparently in early days to take counsel with their kinsfolk.10 "The parents and relations. Hermann-Blümner, 'Lehrbuch der 1 Becker, loc. cit. vol. ii. p. 446. griechischen Privatalterthümer,' p. 261. 2 Cauvet, in 'Revue de législation,' vol. xxiv. p. 147. 3 Müller, 'The Doric Race,' vol. ii. p. 298. 4 Grimm, Deutsche Rechts Alterthümer,' pp. 461, 487, et seq. Weinhold, 'Altnordisches Leben,' p. 473. 5 Laboulaye, 'Recherches sur la condition civile et politique des femmes,' p. 80. • Koenigswarter, 'Histoire de l'organisation de la famille en France,' p. 140. 7 Pardessus, 'Loi Salique,' p. 456. 8 Koenigswarter, p. 139. 9 Tacitus, loc. cit. ch. xxv. 10 Olivecrona,' Om makars giftorätt i bo,' p. 143. of the parties," says Tacitus, "are consulted in cases of marriage, and determine the nature of the bridal gifts."1 Women always remained in a state of dependence. Girls, wives, or widows, they were under the guardianship of the father, husband, or nearest male relative. The father could freely dispose of his daughter's hand, and her own inclinations seem to have been very little taken into consideration.2 According to ancient Russian laws, fathers had great power over the children ;3 but Macieiowski thinks it improbable that a son could be sold as a slave. Baron von Haxthausen, who wrote before the Emancipation in 1861, says, "The patriarchal government, feelings, and organization are in full activity in the life, manners, and customs of the Great Russians. The same unlimited authority which the father exercises over all his children is possessed by the mother over her daughters. . . . The Russian addresses the same word to his real father, to the Starosta (a communal authority), to his proprietor, to the Emperor, and finally to God, viz., Father ('Batushka')." According to Sir Mackenzie Wallace, however, the head of the household was rather the administrator of a labour association than a house-father in the proper sense of the term. The house and nearly everything it contained were the joint-property of the family, and not even the head of it could sell or buy anything without the express or tacit consent of all the other grown-up men. In Poland, according to Nestor, a father used to select a bride for his son; and in Russia, previous to the Emancipation, it was a common custom for fathers to marry their young sons to full-grown women. According to Professor Bogišić, the power of the father is not so 5 1 Tacitus, loc. cit. ch. xviii. 2 Weinhold, Die deutschen Frauen in dem Mittelalter,' vol. i. p. 303. Wilda, 'Das Strafrecht der Germanen,' p. 802. Olivecrona, loc. cit. P. 48. 3 Accurse, in the beginning of the thirteenth century, says, 'Aliæ vero gentes quædam, ut servos tenent filios, ut Sclavi, aliæ ut prorsus absolutos, ut Francigenæ' (Koenigswarter, loc. cit. p. 224, note 2). • Macieiowski, Slavische Rechtsgeschichte,' vol. iv. p. 404. 7 Macieiowski, vol. ii. p. 189. great among the South Slavonians as among the Russians.1 But Dr. Krauss asserts that a son is not permitted to make a proposal of marriage to a girl against the will of his parents; and, among the Croatians and Servians, it is quite exceptional for the young man himself to look about for his future wife.2 A daughter, of course, enjoys still less freedom of disposing of her own hand.3 The paternal authority of the archaic type here considered formed only a transitional stage in the history of human institutions. It declined gradually, according as the religious basis on which it rested became more unstable. The introduction of a new religion with higher conceptions of human rights particularly contributed to its fall. Paying special attention to its influence on the laws of marriage, I shall endeavour to trace the main features of this highly important process, which released children from paternal despotism. Among the Hebrews, a modification of the patriarchal principle took place as early as the seventh century before the Christian era ; and, according to the Talmudic law, a marriage, to be valid, must be contracted with the voluntary consent of both the parties concerned. In Arabia, Mohammed limited the paternal power. According to all the Mohammedan schools, a son is at liberty to contract a marriage without his father's consent, after he has completed his fifteenth year. The Hanafis and Shiahs grant the same privilege to a daughter, whereas, according to other schools, a woman is emancipated from paternal control only through marriage.? A Mohammedan father certainly has the right to impose the status of marriage on his children during their minority, sons and daughters alike, but the law takes particular care that this right shall never be exercised to the prejudice of the infant. Any act of the father which is likely to injure the interests of the minor is considered illegal, and entitles the judge to interfere in 1 Maine, 'Early Law and Custom,' p. 244, note. 2 Krauss, loc. cit. pp. 314, 313. 4 Ewald, loc. cit. p. 190. * Amír' Alí, loc. cit. p. 179. 3 Ibid., p. 320. Lichtschein, loc. cit. p. 41. 7 Ibid., pp. 180-183. order to prevent the completion of such act, or, if complete, to annul it.1 2 In the mature Greek jurisprudence the paternal power was more restricted than during the Homeric age; and the Roman patria potestas gradually became a shadow of what it had been. Under the Republic the abuses of paternal authority were checked by the censors, and in later times the Emperors reduced the father's power within comparatively narrow limits. Alexander Severus ordained that severe punishments should be inflicted on members of a family only by the magistrate. Diocletian and Maximilian took away the power of selling freeborn children as slaves; and Constantine declared the father who killed his child guilty of murder. The father's privilege of dictating marriage for his sons declined into a conditional veto; and it seems as if daughters also, at length, gained a certain amount of freedom in the choice of a husband. At any rate, a daughter could protest, if the father wished to give her in marriage to a man with a bad reputation. 5 "La philosophie stoïcienne et le christianisme," says M. Koenigswarter, "qui hâtèrent le développement des principes d'égalité, furent surtout favorable saux fils de famille et aux femmes." The influence of Christianity shows itself in Teutonic legislation as well as in Roman. An edict of Clothaire I. in 560 prohibited the forcing of women to marry against their will; although a Council held at Paris three years earlier expressly required the consent of the parents also. According to the laws of Cnut, no woman or girl could be forced to marry a man whom she disliked. The Swedish 'Westgöta-lag' permitted a woman to dissolve a marriage 1 Amír' Ali, loc. cit. pp. 179, 180, 184. 2 Maine, 'Ancient Law,' p. 137. 3 Mackenzie, 'Roman Law,' p. 141. Koenigswarter, loc. cit. p. 86. Rossbach, loc. cit. pp. 47, et seq. + Maine, Ancient Law,' p. 138. Rossbach, p. 396. 5 Rossbach, loc. cit. pp. 400, 396, et seq. • Koenigswarter, p. 93. 7 Pardessus, loc. cit. p. 666. 8 Guizot, 'The History of Civilization,' vol. ii. p. 467. A Council at Orleans, in 541, also forbids ' any one to marry a girl without the consent of her parents' (ibid., vol. ii. p. 464). 9 Cnut,' Dômas,' Leges Saeculares, ch. lxxiv. which had been contracted without her consent;1 and similar privileges were granted to her in the 'Uplands-lag'2 and certain other Teutonic law-books. Later on, the 'Schwabenspiegel '- a faithful echo of canonical ideas says, "When a young man has completed his fourteenth year, he can take a wife without the consent of his father. At twelve years, a maiden is marriageable; and the marriage subsists, even if contracted in spite of her father, or other relatives." A similar privilege, during the Middle Ages, was granted to German women in general. But the feelings of the people seem to have been opposed to it, and required the consent of the parents. Thus Ulrich von Lichtenstein says in his Frauenbuch,' "A girl who has no parents should follow the advice of her kinsfolk; if she gives herself to a man of her own accord, she may live with shame." 6 Paternal authority has declined more rapidly in some countries than in others. The process has been especially slow in France. In the literature of the eleventh century, says M. Bernard, the paternal character "is everywhere honoured, and filial piety everywhere praised and rewarded. In the romances of chivalry fathers are never ridiculous; nor sons insolent and mocking. Above the majesty of the feudal baron, that of the paternal power was held still more sacred and inviolable. However powerful the son might be, he would not have dared to outrage his father, whose authority was in his eyes always confounded with the sovereignty of command."7 This respect exercised a tyrannical dominion for centuries. Du Vair remarks, "Nous 1 'Westgöta-Lagen,' Codex Recentior, Kirkyu Balker, ch. lii. Additamenta, § 8. 2 ' Uplands-Lagen,' Aerfdæ Balkær, ch. i. § 4. 3 Nordström, 'Svenska samhälls-författningens historia,' vol. ii. pp. 15, et seq. Wilda, loc. cit. p. 803. Weinhold, 'Deutsche Frauen,' vol. i. p. 304 According to Saxo Grammaticus (Historia Danica,' book v. vol. i. p. 186), a woman was allowed to dispose of her own hand before the days of King Frotho. 4 'Der Schwabenspiegel,' Landrecht, § 55. 5 Kraut, 'Die Vormundschaft,' vol. i. p. 326. 6 Weinhold, vol. i. p. 305. 7 Quoted in Spencer's 'Descriptive Sociology,' France, p. 38. |