HEBREW AND ARYAN MONOGAMY.
I. _Monogamy of the Races called Superior._--The monogamic ideal and
the monogamic reality.
II. _Hebrew Marriage._--Monogamy and concubinage--Position of
the wife--The virtuous woman of the Book of Proverbs--Obligatory
virginity--The levirate.
III. _Marriage in Persia and Ancient India._--Marriage in the
Avesta--Marriage in India--General monogamy--Extreme subjection of
the wife--Purchase of the wife--Matrimonial prohibitions--The ideal
spouse--Marriage in modern India.
IV. _Marriage in Ancient Greece._--Wives and concubines--Low position
of the wife--Marriage in Sparta--Celibacy chastised--The young Greek
girl assimilated to a thing--Dowry--The wife emancipated by money.
V. _Marriage in Ancient Rome._--Marriages of children--Relative
liberty of the Roman woman--The _Patria potestas_--The _Manus_--Three
kinds of marriage--The rights of the husband--The case of Cato the
Elder--The _jus connubii_--The dowry and its effects.
VI. _Barbarous Marriage and Christian Marriage._--Marriage among the
Germans in the Middle Ages, among the Saxons of England--Marriage
according to Christianity.
I. _Monogamy of the Races called Superior._
After a long journey of exploration through the inferior forms of the
sexual union amongst mankind, we have in the preceding chapter begun
the study of monogamy, which all the superior races have more or less
adopted in their legislation.
It is impossible to deny that monogamy is theoretically nobler than
the other matrimonial forms. Nothing can be more beautiful than
the union of two intelligent and refined beings freely associating
their lives after ripe reflection “for better, for worse,” as the
marriage service of England has it. But the reality is often very
different from this poetic ideal. Even amongst the most highly
civilised peoples, this spontaneous, disinterested, devoted union,
based on moral and intellectual sympathies, is very rare; it does not
exist in civilisations still partly barbarous, whose monogamy easily
accommodates itself to the subjection of women, however extreme. We
shall see that it is so, in studying this matrimonial type amongst
the Hebrews at first, and afterwards amongst the Aryan races, that is
to say, amongst the human types which are reputed _par excellence_
Superior.
II. _Hebrew Marriage._
The Hebrews seem to have been alone among the Semites in adopting
monogamy, at least in general practice. Moreover, the Bible tells us
that concubinage was not forbidden to God’s chosen people. In speaking
of the daughter sold by her father to a rich man, the book of Exodus
used language sufficiently explicit on this point--“If she please not
her master, who hath betrothed her to himself, then shall he let her
be redeemed: to sell her unto a strange nation he shall have no power.
And if he have betrothed her unto his son, he shall deal with her after
the manner of daughters. But if he take to him another wife, her food,
her raiment, and her duty of marriage, shall he not diminish.”[560] The
book of Genesis indeed tells us that “a man shall leave his father and
mother, and shall cleave unto his wife; and they twain shall be one
flesh;”[561] but this famous verse seems to indicate the violence of
the love rather than monogamic and indissoluble marriage.
Doubtless the subjection of the Jewish woman was not extreme, as it is
in Kabyle; it was, however, very great. Her consent to marriage was
necessary, it is true, when she had reached majority, but she was all
the same sold to her husband. We must note, nevertheless, that she had
a recognised right of ownership, and that the property of the husband
was security for that of the wife and for her dowry; but the husband
none the less held the wife in strict dependence. The song of the
virtuous woman at the end of Proverbs is generally quoted as a sublime
portrait of the Jewish wife by all those who are still hypnotised by
the prestige of the so-called holy books. However, in reading these
celebrated verses with an unprejudiced mind, we hardly find more
than the portrait of a laborious servant, busy and grasping--“She
seeketh wool and flax, and worketh willingly with her hands.... She
riseth while it is yet night, and giveth meat to her household, and a
portion to her maidens. She considereth a field, and buyeth it; with
the fruit of her hands she planteth a vineyard. She girdeth her loins
with strength, and strengtheneth her arms.... Her candle goeth not
out by night.... She eateth not the bread of idleness.” We shall see
later that the wife, though she might gain much money, which seems to
have been the ideal of the Hebrew husband according to the Proverbs,
was repudiable at will, with no other reason than the caprice of the
master who had bought her. Finally, and this is much more severe, she
was always obliged to be able to prove, cloths in hand, that she was
a virgin at the moment of her marriage, and this under pain of being
stoned. Let us listen to the sacred book--“If any man take a wife, and
go in unto her, and hate her ...” and seeking a pretext to repudiate
her, he imputes to her a shameful crime, saying, “I took this woman,
and when I came to her, I found her not a maid ... her father and
mother shall take her and shall represent to the elders of the city
in the gate the tokens of the damsel’s virginity.” Of what kind were
these proofs? The following verses tell us, “They shall spread the
cloth before the elders of the city. And the elders of that city shall
take that man and chastise him, and they shall amerce him in an hundred
shekels of silver, and give them unto the father of the damsel.... But
if this thing be true, and the tokens of virginity be not found for
the damsel, then they shall bring out the damsel to the door of her
father’s house, and the men of the city shall stone her with stones
that she die; because she hath wrought folly in Israel, to play the
whore in her father’s house; so shalt thou put evil away from among
you.”[562] If we add to the preceding, that by the law of levirate,
the childless widow, whether she wished or not, was awarded to her
brother-in-law, we shall be enlightened as to the unenviable position
of the married woman under the Hebrew law.
III. _Marriage in Persia and Ancient India._
Of the conjugal customs of the ancient Persians we know little. The
only formal prescription that we find in the Avesta is a strict
prohibition against marrying an infidel. The Mazdean who commits such
a crime troubles the whole universe: “he changes to mud a third of the
rivers that rush down the mountain sides; he withers a third of the
growth of trees and of herbs which cover the earth; he takes from pure
men a third of their good thoughts, of their good words, of their good
actions; he is more noxious than serpents and wolves.”[563]
On Indian marriage we are better informed, at first by the Code
of Manu, and then by modern travellers. India has early practised
mitigated monogamy. Polygamy and concubinage were the privilege of the
Brahmins and rich Kchatriyas; but the mass of the nation generally
lived in monogamy, though nevertheless imposing on the married woman
a most humiliating position. Manu proclaims aloud the necessary
dependence and incurable inferiority of the weaker sex: “If women
were not guarded, they would bring misfortune to two families.” “Manu
has bestowed on women the love of their bed, of their seat, and of
adornment, concupiscence, anger, bad inclinations, the desire to do
evil, perversity.”[564] “A little girl, a young woman, and an old
woman ought never to do anything of their own will, even in their own
house.” “During her childhood a woman depends on her father; during
her youth, on her husband; her husband being dead, on her sons; if she
has no sons, on the near relatives of her husband; or in default of
them, on those of her father; if she has no paternal relatives, on the
sovereign. A woman ought never to have her own way.”[565]
Given such an utter subordination of woman, it is self-evident that
there would be no question of her choosing a husband. It is the
father’s duty to marry his daughter; and he need not wait till she
has reached puberty: “A father must give his daughter in marriage to
a young man of agreeable appearance, and of the same rank, according
to the law, although she may not have attained the age of eight years,
at which he ought to marry her.”[566] However, if the father neglects
the prime duty of marrying his daughter, the law ordains that the
latter shall proceed to do it. Marriage is a sacred duty: “Let a girl,
although adult, wait three years; but after that period, let her choose
a husband of the same rank as herself.”[567] The girl is then free, and
her husband in marrying her owes no payment to the father: “The father
has lost all authority over his daughter in delaying for her the time
of becoming a mother.”[568] Girls cannot be married too soon; at eight
years old they are given a husband of twenty-eight; at twelve years, a
man of thirty.[569] Some verses, in contradiction to that which I have
just now quoted, forbid the father from receiving any gratuity whatever
in marrying his daughter, not even a cow or a bull: “All gratuity,
small or large, constitutes a sale.”[570] But the prohibition to sell
his daughter, though still very little observed, is evidently of
posterior date; and in India, as in all other countries, the daughter
has been esteemed at first as merchandise. The law imposes at times
very curious restrictions on a man who is intending to marry. He must
not take a girl with red hair, or bearing the name of a constellation,
of a river, a bird, or a serpent.[571] He must not, under pain of hell,
marry before his elder brother.[572] Above all, he must not marry below
his rank. To marry a woman belonging to the servile class is, for the
Brahmin or the Kchatriya, an enormous crime, which lowers him to the
rank of the Soudras.[573] It is an unpardonable sin: “For him who
drinks the foam of the lips of a Soudra, or who has a child by her,
there is no expiation declared by the law.”[574] He descends to the
infernal abode, and his son loses caste. As for the son of a Brahmanic
woman and a Soudra, he is a Tchandala, the vilest of mortals.[575] The
young Brahmin, after having received the authorisation of his spiritual
director, and having purified himself by a bath, must marry a woman of
his own class, who is well made, who has a fine down over her body,
fine hair, small teeth, limbs of a charming sweetness, and the graceful
movement of a swan or a young elephant.[576] But, however the wife may
be chosen, she is held in a state of servile submission. “A wife,” says
the Code, “can never be set free from the authority of her husband;
neither by sale nor by desertion.” “Once only a young girl is given in
marriage; once only the father says, I give her.”[577]
Taken as a whole, these antique precepts are still observed in India.
In general, monogamy prevails, but the married woman is none the less
kept in a state of abject subjection. It is shameful, says Somerset,
for a virtuous woman to know how to read and dance; these futile
accomplishments are left to the bayadere. “Servant, slave,” are the
habitual appellations used by the husband in addressing his wife,
who replies by saying “Master, lord,” who must take care not to call
her husband by his name,[578] and has not the right to sit at his
table.[579] It is the parents who negotiate the marriage, without any
regard to the tastes of the future husband and wife, and thinking only
of rank and fortune.[580] A daughter is always married, or rather sold,
in infancy, often to a sexagenarian Brahmin, and before she is of age
to manifest any preference.[581]
These accounts, which are as authentic as possible, enable us to
estimate the Hindoo marriage. However monogamic it may generally be,
it is very inferior from a moral point of view. The tyrannical right
left to the husband, his unlimited power, the servitude of the wife,
yielded or negotiated in infancy, the pride of caste and the care for
wealth outweighing all other considerations, proclaim loudly enough
that matrimonial legislation in India has been the regulation, for the
man’s profit only, of instincts of a very low order.
IV. _Marriage in Ancient Greece._
In primitive Greece the position of woman was little better. On one
hand, the _Iliad_ tells us that the epithet “woman” thrown at a man
was the most contemptuous insult;[582] on the other hand, we have seen
that the girl was purchased by the husband, either by presents or by
services rendered to the father;[583] in short, that the husband might
have domestic concubines with the sole reservation that their children
did not inherit from him.[584] In the first chant of the _Odyssey_ the
severe apostrophe of Telemachus to his mother proves also that in the
absence of the husband the wife was humbly submissive to her sons. “Go
to thy chamber; attend to thy work; turn the spinning wheel; weave the
linen; see that thy servants do their tasks. Speech belongs to men,
and especially to me, who am the master here.”[585] Penelope, like a
well-trained woman, meekly allows herself to be silenced and obeys,
“bearing in her mind the sage discourse of her son.”
In later times the virtuous woman was shut up in the gyneceum, where
she could only receive her parents or the friends authorised by her
husband.[586] She was not even admitted to festivities. But, while
the wife was semi-cloistered in the conjugal house, the husband could
at will frequent and court the hetaïræ (ἑταίραι), and the strangers
(ξέναι) with whom the citizens of Athens had not the _jus connubii_,
and who were not admitted like the well-born or native Athenian woman
(ελευθέρα) to the thesmophors.[587]
It is evident that at Athens primitive marriage was regulated by the
man with very little heed to the tastes or preferences of the woman.
At Sparta it was the sentiment of strict and zealous patriotism
which inspired Lycurgus in all his regulations regarding marriage.
The obligation of marriage was legal, like the military service. The
young men were attracted to it by making them assist at the gymnastic
exercises of naked young girls. “This was an incentive to marriage,
and, to use Plato’s expression, drew them almost as necessarily by
the attraction of love as a geometrical conclusion is drawn from the
premises.”[588] In the supreme interest of population, love was forced
on young men, but it was for the sake of fertility. The young married
couple were not allowed to meet except in secret until the first
pregnancy.[589] It was praiseworthy for an old husband to lend his
young wife to a handsome young man, by whom she might have a child.
In our own day it is not very rare, particularly in France, to see poor
young men marry rich old women. Solon did not permit this conjugal
prostitution of man at Athens. “A censor,” says Plutarch, “finding
a young man in the house of a rich old woman, fattening as they say
a partridge fattens by his services to the female, would remove him
to some young girl who wanted a husband.”[590] At Sparta Lycurgus
went as far as to put hardened celibates under the ban of society. In
the first place, they were not permitted to see these exercises of
the naked virgins; and the magistrates commanded them to march naked
round the market-place in winter, and to sing a song composed against
themselves.... They were also deprived of that honour and respect which
the young pay to the old.[591]
The young Greek girl could not dispose of her person any more than
the Chinese or Hindoo woman could. She was married by her father; in
default of her father, by her brother of the same blood; in default of
a brother, by a paternal grandfather.[592] The right of brothers who
were heirs to their father to marry their sister was not even exhausted
by a first marriage.[593] The father of the family had the power either
to marry his daughter during his lifetime, or to bequeath her by will,
as well as her mother, who was assimilated, like her, to chattels or
property. “Demosthenes, my father, bequeathed his fortune, which was
fourteen talents, myself, aged seven years, my sister, aged five years,
and our mother. At the moment of dying, when asked what he would have
done with us, he bequeathed _all these things_ to this Aphobus and to
Demophontes, his nephews; he married my sister to Demophontes, and gave
at once two talents.”[594] “In the same way,” says Demosthenes again,
“Pasion dying, bequeathed his wife to Phormion.”[595] It might happen
that the daughter or the wife were by law one body with the estate.
Thus a daughter, in default of male heirs, belonged to the relation who
would have inherited in her stead and place, if she had not lived.
If there were several relatives in the same degree of succession,
the daughter was to marry the eldest of them. Further still, she was
obliged in this case to quit her husband, if previously, and even with
paternal authorisation, she had contracted marriage.[596] In Greece, to
safeguard or conquer her independence, a woman had no other resources
than the seduction of her sex and the love she could inspire. She
had early recourse to these defensive weapons, for Aristotle thinks
it his duty to put young men on guard against the excess of conjugal
tenderness and feminine tyranny, the habit which enchains the man to
his wife.[597] At length in Greece, as it had happened in Egypt, money
finished by protecting the woman much more efficaciously, and even by
giving her sometimes the advantage on the conjugal field of battle.
Solon, who knew Egypt, began by decreeing the absolute poverty of
the married woman. “The bride was to bring with her only three suits
of clothes, and some household stuff of small value, for he wished
marriages to be made without mercenary or venal views, and would have
that union cemented by love and friendship, and not by money.”[598] But
this primitive legislation could not stand against the combined action
of the affection of the girl’s parents, her own desire of independence,
and lastly, the cupidity of the husband, and thus the practice of
the dowry became general. This dowry was constituted before marriage
by a public act.[599] Securities and bonds were given to assure the
dowry and the conditions of marriage. The dowry was mortgaged on the
husband’s property, and returned to the wife on the dissolution of the
marriage. When the woman could shelter herself behind the shield of the
dowry she was much more respected, and she even sometimes tyrannised in
her turn. Aristophanes, Menander, Lucian, etc., pour out endless bitter
criticisms on the haughty and extravagant rich woman.
In the comedy of _The Clouds_ the good Strepsiades cries: “I led so
happily in the country a good simple life, without vexation or care,
rich in bees, in sheep, and in olives! Then I married the niece of
Megacles, son of Megacles. I was of the country, she of the town; she
was a haughty, extravagant woman, a true Cesyra. The wedding day,
when I lay down by her, I smelt the wine, the cheese, and the wool;
she cares for perfumes, saffron, tender kisses, expense, good cheer,
and wanton transports. I will not say that she was idle--no--she
worked hard at ruining me.” According to Menander, religion served
as an excuse to women for enormous expenses. Under the pretext of
piety they ruined their husbands by religious sacrifices accompanied
with perfumes, with golden clasps for the sandals, and female slaves
ceremoniously ranged in a circle.[600]
One poor hen-pecked husband groans in these terms: “Cursed be the first
man who invented marriage, and then the second, and the third, and the
fourth, and all those who imitated them.” One old husband laments: “I
have married a witch with a dowry. I took her, to have her fields and
house, and that, O Apollo, is the worst of evils.”[601] Listen again to
this one: “If being poor, you marry a rich woman, you give yourself a
mistress and not a wife; you reduce yourself to be at the same time a
slave and poor”--(Anaxandrides).[602]
To sum up, in ancient Greece marriage implied at first the complete
slavery of the wife, who was treated as a thing; then by degrees
conjugal customs were mitigated, and the wife became a person, and
even a proprietor, whom her dowry or personal fortune could protect.
Thenceforward money produced its usual effect on inferior characters:
it debased or infatuated individuals who were without moral nobility;
cupidity blinded certain men; the insolence of money intoxicated
certain women. But this only occurred among the ruling classes, and the
fate of husbands reduced to conjugal servitude by love of a large dowry
does not concern us here.
The important feature in Greek marriage is, that the first legislators
regarded it solely from the point of view of increase of population,
and held individual liberty, especially that of the woman, very
cheaply. Whatever we may think of this legal tyranny, it attained
its end perfectly. The small republics of ancient Greece overflowed
with men; thus Attica had four thousand one hundred and sixty-six
inhabitants to the square league--that is to say, the population was
three times more dense than that of France at present.
V. _Marriage in Ancient Rome._
In its general features Roman marriage does not greatly differ from
Greek, but its evolution has been more complete, and the legislation on
the subject is better known to us. Marriages of children, especially
of little girls, were the rule at Rome, since the nuptial majority of
girls was fixed at twelve years. But they were often betrothed, and
even married, before that age. Vipsania Agrippina, daughter of Agrippa
and of Pomponia, was promised to Tiberius from her first year.[603] The
_Digest_ authorised betrothal at the age of seven.[604]
In betrothing his daughter the father contracted a civil obligation,
sanctioned at first by an action for damages, and later by infamy.
Every woman of twenty, if she was neither married nor a mother,
incurred the punishment decreed by Augustus against celibacy and
childlessness.[605] We are indeed told in Roman legislation that the
consent of the girl was necessary before passing finally to betrothal
and marriage. But it is evident that the consent of a child of twelve
years, or even less, was illusory; in reality, the young Roman girl was
married by her parents.[606] The young wife was still such a child,
that on the day of her wedding she took a ceremonious leave of her
playthings and dolls, offering them up to the gods. In reality, it was
not the wife who made the engagement, but the persons in whose power
she found herself.[607]
Nevertheless, Roman customs conceded to women a certain liberty of
manners which the Greeks would not have tolerated. The Roman woman
walked in the streets, went to the theatre with the men, shared in
banquets, etc.; yet she was, especially in primitive Rome, subjected
first to her father and then to her husband. And, besides, public
opinion obliged the woman to use in great moderation the practical
liberty that was left to her. The famous epitaph of the Roman
matron--_domum mansit; lanam fecit_--is well known. This epitaph may
perhaps exaggerate, but it does not lie. Thus Suetonius tells us that
the daughters and grand-daughters of Augustus were compelled to weave
and spin, and that the Emperor usually wore no other garments but those
made by the hands of his wife and sister.[608]
Legally, the Roman wife was the property of her husband, who treated
her, not as his equal, but as his child. At Rome, also, conjugal union
had been looked at chiefly from the point of view of procreation
(_Liberorum quærendorum causâ_). The wife who was the mother of three
children acquired a certain independence; she could make a will even
during the lifetime of her husband, and did not need to have recourse
to a trustee.[609] But the subjection of woman was very great. The
father, invested with the _potestas_, could sell his child to a third
party, _in mancipium_. The _mancipium_, which was almost a right of
propriety, passed afterwards to the heirs of the owner.
We have seen that the _pater familias_ had the right to marry his
daughter without consulting her, but he enjoyed a right more excessive
still, that of re-marrying her when his son-in-law had been absent
for three years.[610] It was Antoninus only who thought of depriving
the father of his right to annul the marriage of his daughter. To the
_potestas_ of the father succeeded the _manus_ of the husband. The
woman _in manu_ was considered legally as the daughter of her husband,
and therefore as the sister of her children. If the husband was himself
the son of a family, the wife _in manu_ was held as grand-daughter
of the father of the family. This entailed for her the extinction of
paternal power (on her own side), and of guardianship and the rights
of relationship with the male members of her father’s family. In the
marriage with _manus_ the husband became the proprietor of all the
dowry of his wife. The father, however, could stipulate that the dowry
should be returned to him if his daughter died without children or was
repudiated. The _leges Julia_ and _Papia_ had, in fact, imposed on the
father the obligation of giving a dowry to his daughter; but the dowry
could be appointed by third parties or by the woman herself, if she
was _sui juris_, and then also she had the right to stipulate for some
reservations.
This terrible right of _manus_ was acquired by the husband with every
form of marriage, even the grossest of all, the _usus_, or simple
cohabitation during one year; but the wife could avoid the _conventio
in manum_ by passing three nights in the year out of the conjugal
domicile. The _manus_ invested the husband with a large right of
correction over his wife, though in very grave cases he was to assemble
the family tribunal, which included the children of cousins-german.
These family tribunals took cognisance even of murder committed by
the wife, and they were still in use under the emperors.[611] On the
other hand, the Roman husbands did not let their legal right of beating
their wives fall into desuetude, for Saint Monica consoled the wives
of her acquaintance whose faces showed marks of marital brutality,
by saying to them: “Take care to control your tongues.... It is the
duty of servants to obey their masters.... You have made a contract of
servitude.”[612]
There were at Rome three kinds of marriages, which I have already
named--1st, The _usus_, resulting from a simple continuous
cohabitation, without contract or ceremony, a sort of Tahitian
marriage; 2nd, the _coemptio_ or purchase, of which I have spoken at
length--that is to say, the legal regulation of the primitive marriage
by purchase, in use all over the world at the origin of civilisations.
Coemption, without any palliatives, delivered the wife’s body and goods
to her husband; 3rd, the _confarreatio_, or aristocratic marriage,
in which the high Pontiff of Jupiter gave, in the presence of ten
witnesses, a cake made of flour, water, and salt to the bride and
bridegroom, who ate it between them. The _manus_ was conferred on the
husband in the marriage by confarreation, the same as in the marriage
by _usus_ and _coemptio_. We must note that at Rome, as in Greece, the
religious ceremony was in no way essential to the marriage, which was a
laic and civil institution in the first place.[613]
These three forms of marriage very probably represent the evolution of
the conjugal union in ancient Rome. The _usus_, or free cohabitation,
must have been the commencement; then came the purchase of the wife,
the _coemptio_, and at length the solemn marriage or _confarreatio_
of the patricians. But marriage with the husband’s right of _manus_
subsisted for a long time, and it conferred on him all the customary
licence of savages of every country, notably that of lending the wife,
and this exorbitant right endured till the best days of Rome, since the
virtuous Cato of Utica used it still in lending his wife Martia to his
friend Hortensius.
This fact is curious, and deserves attention. Hortensius began by
asking for the loan of Cato’s daughter, Portia, already married to
Bibulus, and the mother of two children. It was, says Plutarch, with
the object of selection, that he might have a child of good race; he
promised to return her afterwards to her husband. On the refusal of
Cato, Hortensius fell back on Martia, Cato’s own wife, who was at the
time _enceinte_. Cato was not at all shocked at the proposition,
but referred it, however, to Philip, his father-in-law, who also
saw no harm in it. A contract was therefore concluded between Cato,
Hortensius, and Philip; and Martia, whom no one thought of consulting,
was yielded to Hortensius, and afterwards taken back, at the death of
the latter, by Cato. She was then the heir of Hortensius, and Cato had
not the least scruple in receiving her back with her money at the same
time.[614]
To any one not versed in ethnographical sociology these customs seem
improbable. Doubt has been cast on this story of Hortensius and Cato,
though it is attested by the _Anti-Cato_ of Julius Cæsar, on which
Plutarch relies; but it has nothing extraordinary for us. We know that
at first woman was everywhere the absolute property of the man. The
_manus_ of the Roman husband was in the main only an attenuated form
of primitive conjugal right, which we know included the power to lend,
barter, or cede the wife without consulting her. The case of Cato is
then only a survival of preceding ages.
Necessarily brief and incomplete as the _résumé_ must be that I can
here give of conjugal legislation at Rome, it will suffice, I hope, to
give a clear idea of what Roman marriage was. I should add that the
law, inspired by the old patriotic spirit and the prejudices of caste,
limited the right of marriage, the _jus connubii_. The _justes noces_
were at first an aristocratic privilege. The plebeians coupled _more
ferarum_. At length the _jus connubii_ extended to marriages between
Latin and Roman, Latin and Latin, and even foreigner and foreigner.
The child followed the condition of the mother, which seems to be a
survival of the ancient maternal family. Another vestige of the same
kind is found in the legal position of _spurii_--that is to say, of
children born of a marriage which is either prohibited or incestuous or
bigamous. These children, irregularly conceived, have a mother, but no
legal father; they do not come under the paternal power of the father,
like the child of lawful marriage, and cannot be legitimated.[615]
The study of the transformations that Roman marriage underwent from
the time of Numa to that of the emperors is most interesting; for we
can follow a complete evolution in regard to it which has never been
so complete in any other country. At first we find conjugal anarchy,
the capricious union or _usus_, which could be, and which was in fact,
often polygamous, as the ulterior persistence of the concubinate
proves; then the marriage by capture, of which the trace remained in
the marriage ceremony; then the marriage by purchase, the coemptio,
with its ordinary consequence, the servitude of the wife, which even
the solemn marriage or confarreation did not abolish. At length this
brutal law of the primitive ages relaxes. The law which holds the
woman under paternal power (_patria potestas_) is turned round. The
father himself gives his daughter _in mancipium_ to a third party, who
afterwards enfranchises her. Sometimes it is the _patria potestas_
which is a check to the _manus_ of the husband. The wife, in marrying,
without being subject to the _manus_, remains subject to her father,
who can even claim her again.
But the institution of the dowry as obligatory and inalienable by
the husband, the power of the woman to marry while remaining in the
paternal family, to have her paraphernalia, to inherit property of
her father, to control both of these, and also the great facility
of divorce, ended by rendering the Roman, or at least the patrician
matron, almost independent. Under the empire Roman marriage had become
in fact a sort of free union, in which money considerations played the
predominant part. Plautus already speaks of the dotal-slave, a creature
of the wife’s, managing her property and ruling the husband--
“_Argentum accepi, dote imperium vendidi._”[616]
Horace mentions the wife ruling by means of her dowry--“_dotata regit
virum conjux_” (_Od._ iii. 18). Martial declares that he wishes no
rich marriage; it does not suit him, he says, to be married by his
wife--“_uxori nubere nolo meae_” (_Epig._ viii. 12). From Seneca to
Saint Jerome, who both speak of it, the dotal-slave is advantageously
replaced by the frizzed steward (_Procurator calamistratus_) managing
the affairs of my lady.[617] They went further still, and as it
happens in Russia at the present day, they concluded fictitious
marriages; but at Rome, these false marriages, contracted for ready
money, had no other object than to elude the laws against celibacy.[618]
VI. _Barbarous Marriage and Christian Marriage._
In order to avoid being too incomplete in this rapid survey of marriage
among all races, I will say a few words on barbarous marriage outside
the Greco-Roman world.
The barbarians of ancient Europe, more or less monogamous, have
differed little from any others. Their marriage resembles that of their
fellows of all races and all times; that which chiefly characterises it
is the subjection of woman.
Barbarous women, says Plutarch, neither ate nor drank with their
husbands, and never called them by their name.[619] Among the
Germans, who were more often monogamous, as Tacitus says,[620] the
wife was purchased; then the purchase-money was transformed into a
dower accorded to the bride under the name of _morgengabe_ or oscle
(_osculum_), the price of the first kiss.
German betrothals, which could only be annulled for a serious reason,
strongly resembled Latin ones--that is, they were a sale of the girl in
anticipation by her legal owners. It was necessary for the girl to have
the consent of her father, or her nearest relative, for her marriage.
As widow, having been purchased, she belonged to the relatives of her
dead husband, and could not marry again without their leave.[621] The
feudalism of the Middle Ages was careful not to emancipate the woman,
and she remained a minor, or even less, since the Code of Beaumanoir
says (titre lvii.)--“Every husband can beat his wife when she will
not obey his commands, or when she curses him or contradicts him,
provided that he does it moderately, and that death does not follow in
consequence.” Among the Saxons, the Burgundians, and the Germans in
general, the widow was subjected to the rule of her eldest son as soon
as he had attained the age of fifteen.
In the Middle Ages the woman surprised in committing adultery might
be executed by her husband, who even had the right to call in the aid
of her son.[622] In the ninth and tenth centuries, however, among the
Saxons in England, an advance that was quite exceptional took place.
The young girl could marry herself, was not repudiable at will, had
her own property and her keys, and the penal law of her husband ceased
to weigh upon her.[623] This progress was quite local, and operated
spontaneously, quite independently of Christian influence. In fact,
Christianity has only emancipated women spiritually, and its real
influence on marriage has been injurious. Doubtless the Christian wife
might hope to become a seraph in the next world, but in this she was
only a servant or a slave. In Greco-Roman antiquity marriage had been
considered, as it ought to be, a civil institution. Legislation, more
or less sensible and intelligent, regarded it simply from the point of
view of population.
Christianity, which taught that the earthly country was of no account,
and taxed with impurity all that related to sexual union, made marriage
a sacrament, and consequently an institution quite apart from humble
considerations of social utility. All sexual union outside marriage
was reputed criminal; the ideal preached to women was the mystic
marriage with God. The pious Constantine increased all the penalties
against sexual crimes. Adultery became again a capital offence; the
woman guilty of marrying a slave was condemned to death;[624] marriage
was declared indissoluble; second marriages were blameworthy. At the
same time the fathers of the Church and the preachers did not cease
to utter their thunders against woman, disparaging her, and abusing
her as an impure creature, almost devilish. This encouraged the severe
legislation of the barbarians in conjugal matters. I have previously
mentioned some traits of these brutal laws. I shall return to them in
speaking of questions connected with marriage, which remain still to
be treated of--adultery, divorce, and widowhood. We shall then see how
hurtful the influence of Christianity has been on marriage, and we
shall come to the conclusion that in order to manage earthly affairs
well, it is not good to keep our looks constantly raised to the skies.
FOOTNOTES:
[560] Exodus, xxi. 8-10.
[561] Genesis, ii. 24.
[562] Deut., ch. xxii., ver. 13-21.
[563] Hovelacque, _L’Avesta_, p. 396.
[564] _Code of Manu_, book ix. pp. 5-17.
[565] _Code of Manu_, v. pp. 147, 148.
[566] _Ibid._
[567] _Ibid._ ix. p. 90.
[568] _Ibid._ p. 93.
[569] _Ibid._ p. 94.
[570] _Ibid._ iii. pp. 51, 53.
[571] _Ibid._ book iii.
[572] _Ibid._ book iii. pp. 171, 172.
[573] _Ibid._ pp. 14, 15.
[574] _Code of Manu_, book iii. p. 19.
[575] _Ibid._ p. 17.
[576] _Ibid._ pp. 4-10.
[577] _Ibid._ ix. pp. 46, 47.
[578] Somerset, _Hist. Univ. des Voy._, t. xxxi. p. 352.
[579] _Id._, _ibid._ p. 341.
[580] _Id._, _ibid._ p. 350.
[581] _Id._, _ibid._ p. 350.--_Lettres édifiantes_, t. x. p. 23.
[582] _Iliad_, ii., vii., viii.
[583] Goguet, _Orig. des Lois_, t. ii. p. 60.
[584] _Odyssey_, xiv.
[585] _Ibid._ i.
[586] Cavallotti, _La Sposa di Menecle_ (notes), p. 246.
[587] _Id._, _ibid._ p. 239.
[588] Lycurgus, xxvi.
[589] Plutarch, _Apophthegms of the Lacedemonians_.--_Demandes
Romaines_, lxv.
[590] Solon, xxxviii.
[591] Lycurgus, xxxvii.
[592] Demosthenes, cf. Step. ii.; in Cavallotti, _loc. cit._
[593] Isaeus, _Heritage of Menecles_, §§ 5-9.
[594] Demosthenes, _Against Aphobus_.
[595] _Id._, _For Phormion_.
[596] Isaeus, _Succession of Pyrrhus_.
[597] _Nic. Ethics_, viii. 14.--_Econom._, i. p. 4.
[598] Solon, xxxvii.
[599] Isaeus, _Succession of Pyrrhus_.
[600] _Mysogyne_, Fr. 3.
[601] Menander, _The Necklace_.
[602] Cavallotti, _La Sposa di Menecle_, p. 158.
[603] Friedländer, _Mœurs romaines_, etc., t. I^{er.} pp. 251-254.
[604] _Id._, _ibid._ t. xxiii. pp. 1-14.--_Avis de Molestion._
[605] Friedländer, _loc. cit._ p. 351.
[606] Plutarch, _Lycurgus and Numa compared_, 4, 2.
[607] Friedländer, _loc. cit._ p. 356.
[608] Suetonius, _Octavius_, lxiv.
[609] Plutarch, _Numa Pompilius_, xvii.
[610] Plautus, _Stichus_.
[611] _L’Italie ancienne_, par MM. Duruy, Filon, etc. (_passim_).
[612] Saint Augustine, _Confessions_, book ix. ch. ix.
[613] R. Cubain, _Lois civiles de Rome_, p. 179.
[614] Plutarch, _Cato of Utica_, xxxvi. lxviii.
[615] Domenget, _Institutes de Gaius_, i. 64.
[616] _Asinaria_, v. 70-72.
[617] Seneca, _De matrim._--Saint Jerome, _Letters_, 54, 13, 79, 9.
[618] Friedländer, _Mœurs_, etc., t. I^{er.} p. 360.
[619] Plutarch, _On Herodotus_, xxi.
[620] _Germania_, xviii.
[621] Laboulaye, _Hist. de la succes. des femmes_.
[622] _Summa Cardinalis Hostiensis_, lib. v., _De Adulteris_.
[623] Wake, _Evolution of Morality_, vol. i. p. 381.
[624] _Code Theod._, lib. vi., tit. I^{er.}.