When the bride receives the ring upon her finger, and utters--if she utters
it--the promise to obey, she sees a poetic beauty in the rite. Turning of
her own free will from her maiden liberty, she voluntarily takes the yoke
of service upon her. This is her view; but is this the historic fact in
regard to marriage? Not at all. The pledge of obedience--the whole theory
of inequality in marriage--is simply what is left to us of a former state
of society, in which every woman, old or young, must obey somebody. The
state of tutelage, implied in such a marriage, is merely what is left of
the old theory of the "Perpetual Tutelage of Women," under the Roman law.
Roman law, from which our civil law is derived, has its foundation
evidently in patriarchal tradition. It recognized at first the family only,
and that family was held together by paternal power _(patria potestas)_. If
the father died, his powers passed to the son or grandson, as the possible
head of a new family; but these powers could never pass to a woman, and
every woman, of whatever age, must be under somebody's legal control. Her
father dying, she was still subject through life to her nearest male
relations, or to her father's nominees, as her guardians. She was under
perpetual guardianship, both as to person and property. No years, no
experience, could make her anything but a child before the law.
In Oriental countries the system was still more complete. "A man," says the
Gentoo Code of Laws, "must keep his wife so much in subjection that she by
no means be mistress of her own action. If the wife have her own free will,
notwithstanding she be of a superior caste, she will behave amiss." But
this authority, which still exists in India, is not merely conjugal. The
husband exerts it simply as being the wife's legal guardian. If the woman
be unmarried or a widow, she must be as rigorously held under some other
guardianship. It is no uncommon thing for a woman in India to be the ward
of her own son. Lucretia Mott or Florence Nightingale would there be in
personal subjection to somebody. Any man of legal age would be recognized
as a fit custodian for them, but there must be a man.
With some variation of details at different periods, the same system
prevailed essentially at Rome, down to the time when Rome became Christian.
Those who wish for particulars will find them in an admirable chapter (the
fifth) of Maine's "Ancient Law." At one time the husband was held to
possess the _patria potestas_, or paternal power, in its full force. By law
"the woman passed _in manum viri_, that is, she became the daughter of her
husband." All she had became his, and after his death she was retained in
the same strict tutelage by any guardians his will might appoint.
Afterwards, to soften this rigid bond, the woman was regarded in law as
being temporarily deposited by her family with her husband; the family
appointed guardians over her; and thus, between the two tyrannies, she won
a sort of independence. Then came Christianity, and swept away the merely
parental authority for married women, concentrating all upon the husband.
Hence our legislation bears the mark of a double origin, and woman is half
recognized as an equal and half as a slave.
It is necessary to remember, therefore, that all the relation of subjection
in marriage is merely the residue of an unnatural system, of which all else
is long since outgrown. It would have seemed to an ancient Roman a matter
of course that a woman should, all her life long, obey the guardians set
over her person. It still seems to many people a matter of course that she
should obey her husband. To others among us, on the contrary, both these
theories of obedience seem barbarous, and the one is merely a relic of the
other.
We cannot disregard the history of the Theory of Tutelage. If we could
believe that a chrysalis is always a chrysalis, and a butterfly always a
butterfly, we could easily leave each to its appropriate sphere; but when
we see the chrysalis open, and the butterfly come half out of it, we know
that sooner or later it must spread wings, and fly. The theory of tutelage
implies the chrysalis. Woman is the butterfly. Sooner or later she will be
wholly out.