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]