CHAPTER X

THE LIBERTY OF CHOICE.

It would be easy to adduce numerous instances of savage and barbarous

tribes among whom a girl is far from having the entire disposal of

her own hand. Being regarded as an object of property, she is treated

accordingly.

Among many peoples the female children are usually “engaged”

in their earliest youth. Concerning the Eskimo to the north of

Churchill, Franklin states that, “as soon as a girl is born, the

young lad who wishes to have her for a wife goes to her father’s

tent and proffers himself. If accepted, a promise is given which is

considered binding, and the girl is delivered to her betrothed at

the proper age.”[1286] Early betrothals are among the established

customs of the Chippewyans,[1287] Columbians,[1288] Botocudos,[1289]

Patagonians,[1290] and other American peoples.[1291] Among the African

Marutse, the children “are often affianced at an early age, and the

marriage is consummated as soon as the girl arrives at maturity.”[1292]

The Negroes of the Gold Coast, according to Bosman, often arranged for

the marriage of infants directly after birth;[1293] whilst, among the

Bushmans, Bechuanas, and Ashantees, children are engaged when they are

still in the womb, in the event of their proving to be girls.[1294]

In Australia, too, girls are frequently promised in early youth, and

sometimes before they are born.[1295] The same is the case in New

Guinea,[1296] New Zealand,[1297] Tahiti,[1298] and many other islands

of the South Sea, as also among several of the tribes inhabiting

the Malay Archipelago.[1299] Mariner supposed that, in Tonga, about

one-third of the married women had been thus betrothed.[1300] In

British India infant-marriage has hitherto been a common custom; and

all peoples of the Turkish stock, according to Professor Vámbéry,

are in the habit of betrothing babies.[1301] So also are the

Samoyedes[1302] and Tuski;[1303] and among the Jews of Western Russia,

parents betroth the children whom they hope to have.[1304]

Among some peoples, it is the mother,[1305] brother,[1306] or maternal

uncle,[1307] who has the chief power of giving a girl in marriage. In

Timor-laut, Mr. Forbes says, “nothing can be done of such import as

the disposal of a daughter without the advice, assistance, and witness

of all the villagers, women and youths being admitted as freely to

speak as the elder males;”[1308] and in West Australia, according to

Mr. Oldfield, the consent of the whole tribe is necessary for a girl’s

marriage.[1309] Yet such cases are no doubt rare exceptions, and give

us no right to conclude that there ever was a time when children were

generally considered the property of the tribe, or of their maternal

kinsfolk.

It would, however, be a mistake to suppose that, among the lower

races, women are, as a rule, married without having any voice of their

own in the matter. Their liberty of selection, on the contrary, is

very considerable, and, however down-trodden, they well know how to

make their influence felt. Thus, among the Indians of North America,

numberless instances are given of woman’s liberty to choose her

husband. Schoolcraft asserts that their marriages are brought about

“sometimes with, and sometimes against, the wishes of the graver and

more prudent relatives of the parties,” the marital rite consisting

chiefly in the consent of the parties.[1310] Heckewelder quotes

instances of Indians who committed suicide because they had been

disappointed in love, the girls on whom they had fixed their choice,

and to whom they were engaged, having changed their minds, and married

other lovers.[1311] Among the Kaniagmuts, Thlinkets, and Nutkas, the

suitor has to consult the wishes of the young lady.[1312] Among the

Chippewas, according to Mr. Keating, the mothers generally settle the

preliminaries to marriage without consulting the children: but the

parties are not considered husband and wife till they have given their

consent.[1313] The Atkha Aleuts occasionally betrothed their children

to each other, but the marriage was held to be binding only after the

birth of a child.[1314] Among the Creeks, if a man desires to make a

woman his wife “conformably to the more ancient and serious custom

of the country,” he endeavours to gain her own consent by regular

courtship.[1315] Among the Pueblos,[1316] &c.,[1317] “no girl is

forced to marry against her will, however eligible her parents may

consider the match.”

As to the South American Guanas, Azara states, “Aucune femme ne

consent à se marier, sans avoir fait ses stipulations préliminaires

très-détaillées avec son prétendu, et avec son père et ses parents, à

l’égard de leur genre de vie réciproque.”[1318] In Tierra del Fuego,

according to Lieutenant Bove, the eagerness with which the women seek

for young husbands is surprising, but even more surprising is the

fact that they nearly always attain their ends.[1319] Speaking of the

same people, Mr. Bridges says, “It frequently happens that there is

insuperable aversion on the girl’s part to her husband, and she leaves

him, and if she persists in hating him she is then given to one she

likes.”[1320] It is, indeed, common in America for a girl to run away

from a bridegroom forced upon her by the parents;[1321] whilst, if they

refuse to give their daughter to a suitor whom she loves, the couple

elope.[1322] Thus, among the Dacotahs, as we are told by Mr. Prescott,

“there are many matches made by elopement, much to the chagrin of the

parents.”[1323]

In Australia it is the rule that a father alone can give away his

daughter, and, according to Mr. Curr, the woman herself has no voice

in the selection of her husband.[1324] But, with reference to the

Narrinyeri, Mr. Taplin states that, “although the consent of a female

is not considered a matter of the first importance, as, indeed, is

the case in many uncivilized nations, yet it is always regarded as

desirable.”[1325] Among the Kurnai, according to Mr. Howitt, she

decidedly enjoys the freedom of choice. Should the parents refuse their

consent, she goes away with her lover, and if they can remain away till

the girl is with child she may, it is said, expect to be forgiven.

Otherwise it may become necessary for them to elope two or three

times before they are pardoned, the family at length becoming tired

of objecting.[1326] Mr. Mathew asserts that, with varying details,

marriage by mutual consent will be found among other tribes also,

though it is not completed except by means of a run-away match.[1327]

Elopement undertaken with the consent of the woman is, indeed, and has

been, a recognized institution among at least some of the aboriginal

tribes in Australia. Among the Kurnai it is the rule.[1328]

The Maoris have a proverb, “As a kahawai (a fish which is very

particular in selecting the hook that most resembles its food) selects

the hook which pleases it best out of a great number, so also a woman

chooses one man out of many.”[1329] Mariner supposed that, in Tonga,

perhaps two-thirds of the girls had married with their own free

consent.[1330] Concerning the natives of Arorae, Mr. Turner says,

“In choosing a husband the lady sat in the lower room of the house,

and over her head were let down through the chinks of the floor of the

upper room two or three cocoa-nut leaflets, the ends of which were held

by her lovers. She pulled at one, and asked whose it was. If the reply

was not in the voice of the young man she wished to have, she left it

and pulled at another leaf, and another, until she found him, and then

pulled it right down. The happy man whose leaf she pulled down sat

still, while the others slunk away.”[1331] In the Society Islands, the

women of the middle and lower ranks had the power to choose husbands

according to their own wishes; and that the women of the highest

classes sometimes asserted the same right appears from the addresses a

chief of Eimeo had to pay to the object of his attachment before she

could be induced to accept his offer.[1332] In Radack, “marriages

depend on a free convention,” as seems to be generally the case in

Micronesia.[1333] In the New Britain Group, according to Mr. Romilly,

after the man has worked for years to pay for his wife, and is finally

in a position to take her to his house, she may refuse to go, and he

cannot claim back from the parents the large sums he has paid them in

yams, cocoa-nuts, and sugar-canes.[1334] With reference to the New

Caledonian girl, M. Moncelon remarks, “Elle est consultée quelquefois,

mais souvent est forcée d’obéir. Alors elle fuit à chaque instant pour

rejoindre l’homme qu’elle préfère.”[1335]

In the Indian Archipelago, according to Professor Wilken, most

marriages are contracted by the mutual consent of the parties.[1336]

Among the Dyaks, “the unmarried girls are at perfect liberty to choose

their mates.”[1337] In some parts of Java, much deference is paid to

the bride’s inclinations;[1338] and, among the Minahassers of Celebes,

courtship or love-making “is always strictly an affair of the heart

and not in any way dependent upon the consent or even wish of the

parents.”[1339] Similar statements are made by Riedel with reference

to several of the smaller islands.[1340] Among the Rejangs of Sumatra,

if a young man runs away with a virgin without the consent of her

father, he does not act contrary to the laws of the country; and, if he

is willing to make the usual payments afterwards, the woman cannot be

reclaimed by her father or other kinsfolk.[1341]

In Burma, “the choice of marriageable girls is perfectly free,” and

marriages are occasionally contracted even in direct opposition to

the parents.[1342] Among the Shans, mutual consent is required to

constitute a valid union;[1343] and, regarding the Chittagong Hill

tribes, Captain Lewin says that the women’s “power of selecting

their own husband is to the full as free as that enjoyed by our own

English maidens.”[1344] The same is the case with many, perhaps most,

of the uncivilized tribes of India. The young couple often settle

the affair entirely between themselves, even though marriages are

ostensibly arranged by the parents;[1345] or the parents, before

they give their children in marriage, consult them, and, as a rule,

follow their likings.[1346] In case of parental objection, elopements

frequently take place.[1347] Among the Kukis, a girl who runs away

from a husband she does not like is not thought to act wrongly in doing

so.[1348] Among the aboriginal tribes of China,[1349] the Ainos,[1350]

Khamchadales,[1351] Jakuts,[1352] Ossetes,[1353] &c.,[1354] the

daughter’s inclinations are nearly always consulted. And, in Corea,

mutual choice was the ancient custom of the country.[1355]

Turning to Africa we find that, among the Touaregs, a girl may select

out of her suitors the one whom she herself prefers.[1356] As to

the West African negroes, Mr. Reade informed Mr. Darwin that “the

women, at least among the more intelligent Pagan tribes, have no

difficulty in getting the husbands whom they may desire, although

it is considered unwomanly to ask a man to marry them.”[1357] The

accuracy of this statement is confirmed by several travellers,[1358]

and it seems to hold good for other parts of Africa. Among the Shulis,

according to Dr. Felkin, the women have a voice in the selection of

their husbands.[1359] The Mádi girls, says Emin Pasha, enjoy great

freedom, and are able to choose companions to their liking.[1360]

Among the Marutse, “free women who have not been given away or sold

as slaves are allowed to choose what husbands they please.”[1361] The

young Kafirs endeavour generally at first to gain the consent of the

girls, for it is, as Mr. Leslie remarks, “a mistake to imagine that

a girl is sold by her father in the same manner, and with the same

authority, with which he would dispose of a cow.”[1362] And, among

the Hottentots[1363] and Bushmans,[1364] when a girl has grown up to

womanhood without having previously been betrothed, her lover must gain

her approbation, as well as that of the parents.

In works by ancient writers we find statements of the same kind. Among

the Cathæi, according to Strabo, the girls chose their husbands, and

the young men their wives;[1365] and the same is said by Herodotus

of the women of Lydia.[1366] In Indian and old Scandinavian tales

virgins are represented as having the power to dispose of themselves

freely.[1367] Thus it was agreed that Skade should choose for herself a

husband among the Asas, but she was to make her choice by the feet, the

only part of their persons she was allowed to see.[1368]

In view of such facts it is impossible to agree with M. Letourneau

that, during a very long period, woman was married without her wishes

being at all consulted.[1369] There can be no doubt that, under more

primitive conditions, she was even more free in that respect than

she is now among most of the lower races. At present a daughter is

very commonly an object of trade, and the more exclusively she is

regarded from this point of view, the less, of course, are her own

likings taken into account. Among the Bedouins of Mount Sinai, who

have marriage by purpose, no father thinks it necessary to consult his

daughter before selling her, whereas, among the Arabs of the eastern

plain, the Aenezes, &c., according to Burckhardt, “the father never

receives the price of the girl, and therefore some regard is paid

to her inclinations.”[1370] But it will be shown that marriage by

purchase forms a comparatively late stage in the history of the family

relations of mankind, owing its origin to the fact that daughters

are valuable as labourers, and therefore not given away for nothing.

Speaking of the Gippsland natives, Mr. Fison says, “The assertion

that women ‘eat and do not hunt’ cannot apply to the lower savages.

On the contrary, whether among the ruder agricultural tribes or those

who are dependent on supplies gathered from the ‘forest and the

flood,’ the women are food-providers, who supply to the full as much

as they consume, and render valuable service into the bargain. In

times of peace, as a general rule, they are the hardest workers and

the most useful members of the community.”[1371] Now, the Australians,

although a very rude race, have advanced far beyond the original

state of man. There is no reason to doubt that, among our earliest

human ancestors, the possession of a woman was desired only for the

gratification of the man’s passions. It may be said generally that in a

state of nature every grown-up individual earns his own living. Hence

there is no slavery, as there is, properly speaking, no labour. A man

in the earliest times had no reason, then, to retain his full-grown

daughter; she might go away, and marry at her pleasure. That she was

not necessarily gained by the very first male, we may conclude from

what we know about the lower animals. As Mr. Darwin remarks, the female

generally, or at least often, exerts some choice. She can in most cases

escape, if wooed by a male who does not please her, and when pursued,

as commonly occurs, by several males, she seems often to have the

opportunity, whilst they are fighting with one another, of going away

with, or at least of temporarily paring with, some one male.[1372]

It might be supposed that at a later stage, when family ties grew

stronger, and bride-stealing became a common way of concluding a

marriage, the consent of the woman in the event of capture would be

quite out of the question. Certainly it must generally have been

so when she fell as a booty into the hands of an enemy. But women

thus captured may in many cases have been able to escape from the

husbands forced on them, and to return to their own, or some friendly

neighbouring, tribe. Very frequently, however, bride-stealing seems to

have taken place with the approval of the girl, there being no other

way in which the match could be concluded if her parents were not

willing to agree to it. It is a common mistake, as Mr. Howitt remarks,

to confound marriage by capture and marriage by elopement. They are

essentially different, the one being effected without, the other

with, the woman’s consent.[1373] Thus, among the Australians, many,

perhaps most, cases of so-called bride-stealing come under the head of

elopements.[1374]

Something remains to be said as to the position of sons among

uncivilized peoples. When young they are everywhere as much dependent

on the parents, or at least on the father, as are their sisters. A

boy may be sold, bartered away, or even killed, if his father thinks

proper. That the power of life and death, under certain circumstances,

rests with the tribe is a matter of little importance in this

connection. But as soon as the young man grows up, the father, as a

rule, has no longer any authority over him, whereas a woman is always

more or less in a state of dependence, marriage implying for her a

change of owner only. Among the Australians, says Mr. Curr, “sons

become independent when they have gone through the ceremonies by

which they attain to the _status_ of manhood.”[1375] The full-grown

man is his own master; he is strong enough not to be kept in check by

his father, and, being able to shift for himself, he may marry quite

independently of the old man’s will.

It often happens, indeed, as we have seen, that parents betroth their

children when they are young.[1376] But, if such an engagement is not

always binding even for the woman, it is of course all the less so

for the man. “The choice among the Kalmucks,” Liadov says, “belongs

entirely to the parents. Still, there is no constraint upon this point,

and, if the son declares that the selection of his parents displease

him, there is no further question about the matter.”[1377]

Moreover, marriage contracts are concluded among certain peoples by the

parents of the parties, even when these are full-grown.[1378] Among

the Iroquois, according to Mr. Morgan, the mother, when she considered

her son of a suitable age for marriage, looked about for a maiden whom

she thought likely to accord with him in disposition and temperament,

and remonstrance or objection on the part of the children was never

attempted.[1379] Among the Basutos, the choice of “the great wife” is

generally made by the father.[1380] And, in many of the uncivilized

tribes of India, parents are in the habit of betrothing their

sons.[1381] In certain cases, the parents merely go through a form of

selection, the matter having already been really settled by the parties

concerned;[1382] and usually a man who has been induced to marry a

woman he does not like, may divorce her and choose another according

to his taste. Yet, speaking of the Kisáns, Colonel Dalton says that

“there is no instance on record of a youth or maiden objecting to the

arrangement made for them.”[1383] The paternal authority among these

tribes of India implies, indeed, a family system of higher type than

we are accustomed to find among wild races: it approaches the _patria

potestas_ of the ancient Aryan nations. Thus, among the Kandhs, in

each family the absolute authority rests with the house-father; the

sons have no property during the father’s lifetime, and all the male

children, with their wives and descendants, continue to share the

father’s meal, prepared by the common mother.[1384] The father chooses

a full-grown woman as a wife for his young son. “In the superior

age of the bride,” says Colonel Macpherson, “is seen a proof of the

supremacy of the paternal authority amongst this singular people. The

parents obtain the wives of their sons during their boyhood, as very

valuable domestic servants, and their selections are avowedly made with

a view to utility in this character.”[1385]

* * * * *

Among savages the father’s power depends exclusively, or chiefly, upon

his superior strength. At a later stage, in connection with a more

highly developed system of ancestor-worship, it becomes more ideal,

and, at the same time, more extensive and more absolute. Obedience to

the father is regarded as a sacred duty, the transgression of which

will be punished as a crime against the gods. Indeed, so prevalent

has this strengthened authority of the father been among peoples who

have reached a relatively high degree of civilization, that it must be

regarded as marking a stage in all human history.

The family system of the savage Indians differs widely, in this

respect, from that which was established among the ancient inhabitants

of Mexico and Peru. Concerning the Mexicans, Clavigero says that

“their children were bred to stand so much in awe of their parents,

that, even when grown up and married they hardly durst speak before

them.”[1386] The following was an exhortation of a Mexican to his

son:—“Honour all persons, particularly thy parents, to whom thou

owest obedience, respect, and service. Guard against imitating the

example of those wicked sons, who, like brutes that are deprived of

reason, neither reverence their parents, listen to their instruction,

nor submit to their correction; because whoever follows their steps

will have an unhappy end, will die in a desperate or sudden manner, or

will be killed and devoured by wild beasts.”[1387] A youth was seldom

allowed to choose a wife for himself; he was expected to abide by the

selection of his parents. Hence it rarely happened that a marriage

took place without the sanction of parents or other kinsfolk, and he

who presumed to marry without such sanction had to undergo penance,

being looked upon as ungrateful, ill-bred, and apostate.[1388] The

belief was, according to Torquemada, that an act of that kind would

be punished by some misfortune.[1389] In a province of the Mexican

empire, it was even required that a bridegroom should be carried, that

he might be supposed to marry against his inclinations.[1390] Touching

the Guatemalans, Mr. Bancroft says, “It seems incredible that the

young men should have quietly submitted to having their wives picked

out for them without being allowed any voice or choice in the matter.

Yet we are told that so great was their obedience and submission to

their parents that there never was any scandal in these things.”[1391]

In the greater part of Nicaragua, matches were arranged by the parents;

though there were certain independent towns in which the girls chose

their husbands from among the young men, while the latter sat at a

feast.[1392] Again, in Peru, Inca Pachacutec confirmed the law that

sons should obey and serve their fathers until they reached the age

of twenty-five, and that none should marry without the consent of

the parents, and of the parents of the girl, a marriage without this

consent being invalid and the children illegitimate.[1393]

Similar ideas formerly prevailed, and to some extent are still found,

among the civilized nations of the Old World. The Chinese have a maxim

that, as the Emperor should have a father’s love for his people, so a

father should have a sovereign’s power over his family.[1394] From

earliest youth the Chinese lad is imbued with such respect for his

parents that it becomes at last a religious sentiment, and forms, as he

gets older, the basis of his only creed—the worship of ancestors.[1395]

Disobedience to parents is looked upon as a sin to be punished with

death, whether the offender be an infant or a full-grown son or

daughter. And in everything referring to the marriage of the children

parents are omnipotent. “From all antiquity in China,” Navarette

says, “no son ever did, or hereafter will, marry without the consent

of his parents.”[1396] Indeed, according to Mr. Medhurst, it is a

universally acknowledged principle in China that no person, of whatever

age, can act for himself in matrimonial matters during the lifetime

or in the neighbourhood of his parents or near senior kinsfolk. The

power of these guardians is so great that they may contract a marriage

for a junior who is absent from home, and he is bound to abide by

such engagement even though already affianced elsewhere without their

privity or consent.[1397] The consequence of this system is that,

in many cases, the betrothed couple scarcely know each other before

marriage, the wedding being the first occasion on which the man catches

a glimpse of his wife’s face.[1398] In some parts of the Empire

children are affianced in infancy.[1399]

In Japan, according to Professor Rein, a house-father enjoyed the

same extensive rights as the Roman _paterfamilias_—an unlimited power

over the person and property of his children.[1400] Filial piety is

considered the highest duty of man, and not even death or the marriage

relation weakens, to any great extent, the hold of a father on a child.

“With affection on the one hand, and cunning on the other,” says Mr.

Griffis, “an unscrupulous father may do what he will.... The Japanese

maiden, as pure as the purest Christian virgin, will, at the command

of her father, enter the brothel to-morrow, and prostitute herself for

life. Not a murmur escapes her lips as she thus filially obeys.”[1401]

Marriages are almost invariably arranged by the parents or nearest

kinsfolk of the parties, or by the parties themselves with the aid

of an agent or middleman known as the “nakōdo,” it being considered

highly improper for them to arrange it on their own account. Among the

lower classes, such direct unions are not unfrequent; but they are held

in contempt, and are known as “yagō,” _i.e._, “meeting on a moor,”—a

term of disrespect showing the low opinion entertained of them. The

middleman’s duty consists in acquainting each of the parties with the

nature, habits, good and bad qualities, and bodily infirmities of the

other, and in doing his utmost to bring the affair to a successful

conclusion. It seldom happens that the parties immediately interested

communicate directly with the middleman; if they have parents or

guardians, it is done by these, and, if not, by the nearest relation.

The middleman has to arrange for a meeting between the parties, which

meeting is known as the “mi ai,” literally “see meeting” and, if

either party is dissatisfied with the other after this introduction,

the matter proceeds no further. But, formerly, says Mr. Küchler, “this

ante-nuptial meeting was dispensed with in the case of people of very

exalted rank, who consequently never saw each other until the bride

removed her veil on the marriage day.”[1402]

Among the ancient Arabs[1403] and Hebrews, fathers exercised very great

rights over their families. According to the old law of Jahveism, a

father might sell his child to relieve his own distress, or offer it

to a creditor as a pledge.[1404] Death was the penalty for a child who

struck a parent, or even cursed one;[1405] though the father himself

could not inflict this penalty on his children, but had to appeal to

the whole community.[1406] How important were the duties of the child

to the parents, is shown in the primitive typical relation of Isaac

to Abraham, and may, as Ewald remarks, be at once learned from the

placing of the law on the subject among the Ten Commandments, and from

its position there in immediate proximity to the commands relating to

the duties of man towards God.[1407] According to Michaelis, there is

nowhere the slightest trace of its having been the will of Moses that

paternal authority and the subjection of sons should cease after a

certain age.[1408] A Hebrew father not only disposed of his daughter’s

hand, but chose wives for his sons,—the selection, however, being

sometimes made by the mother.[1409]

Judging from the marked severity of filial duties among the Egyptians,

some of which are distinctly alluded to in the inscription of Thebes,

we may conclude that, in Egypt, much more was expected from a son than

in any European nation of the present day.[1410] And in the ‘Precepts

of Ptah-Hotep,’ which have been called “the most ancient book in

the world,” we read that the father ought to command, the son to

obey:—“The son who accepts the word of his father will attain old age

on that account. God wishes us to obey; disobedience is abhorrent to

Him.”[1411]

Among the Romans, the house-father had, in the earlier time, the _jus

vitae necisque_—the power of life and death—over his children. He

could imprison, sell, or kill his children under an express law of

the Twelve Tables;[1412] and Plutarch says Brutus condemned his sons

to death, without judicial forms, not as consul, but as father.[1413]

“All in the household,” Mommsen remarks, “were destitute of legal

rights—the wife and the child no less than the bullock or the

slave.”[1414] Even the full-grown son and his children were subject to

the house-father’s will,[1415] and in marriage without _conventio in

manum_ a daughter remained in the power of her father or tutor after

marriage. The consent of the _paterfamilias_ was indispensable to the

marriage of children, sons and daughters alike;[1416] and so strict

was this rule originally, that down to the reign of Marcus Aurelius

the children of a _mente captus_ could not contract a legal marriage

while in the power of their father, the latter being incapable of

giving his consent.[1417] The religious character of this unlimited

paternal authority has been pointed out by M. Fustel de Coulanges. “In

primitive antiquity,” he says, “the father is not only the strong man,

the protector who has power to command obedience; he is the priest, he

is heir to the hearth, the continuator of the ancestors, the parent

stock of the descendants, the depositary of the mysterious rites of

worship, and of the sacred formulas of prayer. The whole religion

resides in him.”[1418]

It has been suggested by Sir Henry Maine and others that the _patria

potestas_ of the Romans was a survival of the paternal authority

which existed among the primitive Aryans.[1419] But no clear evidence

of the general prevalence of such unlimited authority among other

Indo-European peoples has been adduced. Justinian justly observed,

“The power which we have over our children is peculiar to Roman

citizens; for there are no other men possessing such a power over

their children as we have.”[1420] That the father, among the Greeks,

Germans, and Celts, had the power to expose his children when they

were very young and to sell his marriageable daughters, does not imply

the possession of a sovereignty like that which the Roman house-father

exercised over his descendants at all ages. As, however, the family

institution seems to have had a religious basis among the early

Aryans, the father probably had a higher authority than he has among

any existing uncivilized people.

According to Sir Henry Maine, the fulness of the ancient Hindu

_patria potestas_ may be safely inferred from the veneration

which even a living father must have inspired under a system of

ancestor-worship.[1421] At a later date, the law-book of Manu declares

that three persons—a wife, a son, and a slave—have in general no wealth

exclusively their own; the wealth which they may earn being regularly

acquired for the man to whom they belong.[1422] A more recent, but

still ancient authority, Narada, says that a son is “of age and

independent, in case his parents be dead; during their lifetime he

is dependent, even though he be grown old.”[1423] And, speaking of

the South of India, Mr. Nelson observes, “It is an undoubted fact

that, amongst the so-called Hindus of the Madras Province, the father

is looked upon by all at the present day as the Rajah or absolute

Sovereign of the family that depends upon him. He is entitled to

reverence during his life, as he is to worship after his death. His

word is law, to be obeyed without question or demur. He is emphatically

the ‘Master’ of his family, of his wife, of his sons, of his slaves,

and of his wealth.”[1424] But, on the other hand, it appears from

the ‘Rig-Veda’ that, among the ancient Hindus, the father was the

head of the family only as long as he was able to be its protector

and maintainer,[1425] decrepit parents being even allowed to die of

starvation,—a custom which was prevalent among the ancient Teutons

and Eranians.[1426] Moreover, according to the ‘Laws of Manu,’ a

daughter might choose her husband in accordance with her own wish.

This permission, however, seems to have been an innovation, as Manu

himself disapproves of such a “voluntary union of a maiden and her

lover, ... which springs from desire and has sexual intercourse for

its purpose.”[1427] The four marriages—Brâhma, Daiva, Ârsha, and

Prâgâpatya—in which the father gives away his daughter, are blessed

marriages, and from them spring sons radiant with knowledge of the

Veda, honoured by good men, and destined to live a hundred years. But

the remaining four marriages—those effected by purchase, voluntary

union, forcible abduction, or stealth—are blamable marriages, from

which spring sons who are cruel and untruthful, who hate the Veda

and the sacred law.[1428] Among the ancient Persians also, marriage

contracted with the woman’s own consent, but against the will of her

parents, was looked upon as the worst kind of marriage.[1429] In

India,[1430] as well as in Persia,[1431] children were often affianced

in earliest youth by their parents.

According to M. Fustel de Coulanges, the unlimited subjection of the

son to the father existed amongst the ancient Greeks, but disappeared

at an early period at Athens, and somewhat later at Sparta.[1432] It

seems very doubtful, however, whether this subjection ever was so

unlimited as among the Romans. The relations of Ulysses and Laertes

in the Odyssey indicate that, at least under certain circumstances, a

father in the decrepitude of age could be deposed from the headship

of the family. In the mature Greek jurisprudence, as Sir Henry Maine

points out, the direct authority of the parent is restricted, as in

European codes, to the nonage or minority of the children.[1433] At

Athens, a son was in his father’s power till twenty years of age; then

he could marry without paternal sanction.[1434] Women, on the other

hand, were in a state of nonage throughout life. A woman could not be

a party to any act of importance without the consent of her guardians,

whose rights, after her marriage, passed to the husband. As a rule, it

was the lot of a Greek woman to be given in marriage to a man whom

she did not know.[1435] “Les femmes, à Athènes,” says M. Cauvet, “ne

devaient jamais choisir elles-mêmes leur époux, toujours il leur était

par le tuteur que la loi leur donnait.”[1436] At Sparta, as well as

at Athens, the betrothal of the bride by her father or guardian was

requisite as an introduction to marriage.[1437]

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.[1438] “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_.”[1439] 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.[1440] 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;[1441] and an

old commentator states that, “by the law of the Langobardi, children

are not under the ‘power’ of the father.” Nevertheless, the _mundium_

among these people was more severe than among any other of the Teutonic

nations.[1442] 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 Tacitus, a house-father had not unlimited power even over

his slaves;[1443] 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.[1444] “The parents and relations of the parties,”

says Tacitus, “are consulted in cases of marriage, and determine the

nature of the bridal gifts.”[1445] 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.[1446]

According to ancient Russian laws, fathers had great power over the

children;[1447] but Macieiowski thinks it improbable that a son could

be sold as a slave.[1448] 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’).”[1449]

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.[1450] In Poland, according

to Nestor, a father used to select a bride for his son;[1451] 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 great among the

South Slavonians as among the Russians.[1452] 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.[1453] A daughter, of course, enjoys still less freedom of

disposing of her own hand.[1454]

* * * * *

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;[1455] and, according to the Talmudic law, a marriage, to be

valid, must be contracted with the voluntary consent of both the

parties concerned.[1456] In Arabia, Mohammed limited the paternal

power.[1457] 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 Hanafîs and Shiahs grant the same

privilege to a daughter, whereas, according to other schools, a woman

is emancipated from paternal control only through marriage.[1458] 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 interest of the minor is considered illegal,

and entitles the judge to interfere in order to prevent the completion

of such act, or, if complete, to annul it.[1459]

In the mature Greek jurisprudence the paternal power was more

restricted than during the Homeric age;[1460] 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.[1461] The father’s privilege of

dictating marriage for his sons declined into a conditional veto;[1462]

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.[1463]

“La philosophie stoïcienne et le christianisme,” says M.

Koenigswarter, “qui hâtèrent le développement des principes d’égalité,

furent surtout favorables aux fils de famille et aux femmes.”[1464] 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;[1465] although a Council held

at Paris three years earlier expressly required the consent of the

parents also.[1466] According to the laws of Cnut, no woman or girl

could be forced to marry a man whom she disliked.[1467] The Swedish

‘Westgöta-lag’ permitted a woman to dissolve a marriage which had

been contracted without her consent;[1468] and similar privileges were

granted to her in the ‘Uplands-lag’[1469] and certain other Teutonic

law-books.[1470] 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.”[1471] A

similar privilege, during the Middle Ages, was granted to German women

in general.[1472] But the feelings of the people seemed 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.”[1473]

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.”[1474] This respect

exercised a tyrannical dominion for centuries. Du Vair remarks, “Nous

devons tenir nos pères comme des dieux en terre.”[1475] Bodin wrote,

in the later part of the sixteenth century, that, though the monarch

commands his subjects, the master his disciples, the captain his

soldiers, there is none to whom nature has given any command except the

father, “who is the true image of the great sovereign God, universal

father of all things.”[1476] In the Duke of Sully’s ‘Memoirs’ we read

that, in his days in France, children were not permitted to sit in

the presence of their parents without being commanded to do so.[1477]

According to the edicts of Henry III. (1566), Louis XIII. (1639), and

Louis XIV. (1697), sons could not marry before the age of thirty, nor

daughters before that of twenty-five, without the consent of the father

and mother, on pain of being disinherited.[1478] Speaking of the women

among the nobility and upper classes in France during the eighteenth

century, Messrs. de Goncourt remark, “Généralement le mariage de la

jeune fille se faisait presque immédiatement au sortir du couvent, avec

un mari accepté et agréé par la famille. Car le mariage était avant

tout une affaire de famille, un arrangement au gré des parents, qui

décidaient des considérations de position et d’argent, des convenances

de rang et de fortune. Le choix était fait d’avance pour la jeune

personne, qui n’était pas consultée.”[1479]

Even now French law accords considerable power to parents. A child

cannot quit the paternal residence without the permission of the father

before the age of twenty-one except for enrolment in the army.[1480]

For grave misconduct by his children the father has strong means

of correction.[1481] A son under twenty-five and a daughter under

twenty-one cannot marry without the consent of their parents;[1482]

and, even when a man has attained his twenty-fifth year, and the woman

her twenty-first, both are still bound to ask for it, by a formal

notification.[1483] Parental restraints upon marriage exist to a very

great extent in Germany and Holland also, the marriage of minors being

absolutely void, if effected without the consent of the father, or of

the mother if she be the survivor. According to American, Scotch, and

Irish law, on the other hand, the consent of parents and guardians to

the marriage of minors is not requisite to the validity of the union.

The same was the case in England prior to the statute of 26 Geo. II.

c. 33, which declared all marriages by license, when either of the

parties was under the age of twenty-one years, if celebrated without

publication of banns, or without the consent of the father or unmarried

mother, or guardian to be absolutely null and void.[1484]

There is thus a certain resemblance between the family institution of

savage tribes and that of the most advanced races. Among both, the

grown-up son, and frequently the grown-up daughter, enjoys a liberty

unknown among peoples at an intermediate stage of civilization. There

are, however, these vital differences:—that children in civilized

countries are in no respect the property of their parents; that they

are born with certain rights guaranteed to them by society; that the

birth of children gives parents no rights over them other than those

which conduce to the children’s happiness. These ideas, essential as

they are to true civilization, are not many centuries old. It is a

purely modern conception the French Encyclopedist expresses when he

says, “Le pouvoir paternel est plutôt un devoir qu’un pouvoir.”[1485]

The history of human marriage · 第 10 / 29 章