第45章

Ancient Law subordinates the woman to her blood-relations,while a prime phenomenon of modern jurisprudence has been hersubordination to her husband. The history of the change isremarkable. It begins far back in the annals of Rome. Anciently,there were three modes in which marriage might be contractedaccording to Roman usage, one involving a religious solemnity,the other two the observance of certain secular formalities. Bythe religious marriage or Confarreation; by the higher form ofcivil marriage, which was called Coemption; and by the lowerform, which was termed Usus, the Husband acquired a number ofrights over the person and property of his wife, which were onthe whole in excess of such as are conferred on him in any systemof modern jurisprudence. But in what capacity did he acquirethem? Not as Husband, but as Father. By the Confarreation,Coemption, and Usus, the woman passed in manum viri, that is, inlaw she became the Daughter of her husband. She was included inhis Patria Potestas. She incurred all the liabilities springingout of it while it subsisted, and surviving it when it hadexpired. All her property became absolutely his, and she wasretained in tutelage after his death to the guardian whom he hadappointed by will. These three ancient forms of marriage fell,however, gradually into disuse, so that, at the most splendidperiod of Roman greatness, they had almost entirely given placeto a fashion of wedlock -- old apparently but not hithertoconsidered reputable -- which was founded on a modification ofthe lower form of civil marriage. Without explaining thetechnical mechanism of the institution now generally popular, Imay describe it as amounting in law to little more than atemporary deposit of the woman by her family. The rights of thefamily remained unimpaired, and the lady continued in thetutelage of guardians whom her parents had appointed and whoseprivileges of control overrode, in many material respects, theinferior authority of her husband. The consequence was that thesituation of the Roman female, whether married or unmarried,became one of great personal and proprietary independence, forthe tendency of the later law, as I have already hinted, was toreduce the power of the guardian to a nullity, while the form ofmarriage in fashion conferred on the husband no compensatingsuperiority. But Christianity tended somewhat from the very firstto narrow this remarkable liberty. Led at first by justifiabledisrelish for the loose practices of the decaying heathen world,but afterwards hurried on by a passion of asceticism, theprofessors of the new faith looked with disfavour on a maritaltie which was in fact the laxest the Western world has seen. Thelatest Roman law, so far as it is touched by the constitutions ofthe Christian Emperors, hears some marks of a reaction againstthe liberal doctrines of the great Antonine jurisconsults. Andthe prevalent state of religious sentiment may explain why it isthat modern jurisprudence, forged in the furnace of barbarianconquest, and formed by the fusion of Roman jurisprudence withpatriarchal usage, has absorbed, among its rudiments, much morethan usual of those rules concerning the position of women whichbelong peculiarly to an imperfect civilisation. During thetroubled era which begins modern history, and while the laws ofthe Germanic and Sclavonic immigrants remained superposed like aseparate layer above the Roman jurisprudence of their provincialsubjects, the women of the dominant races are seen everywhereunder various forms of archaic guardianship, and the husband whotakes a wife from any family except his own pays a money-price toher relations for the tutelage which they surrender to him. Whenwe move onwards, and the code of the middle ages has been formedby the amalgamation of the two systems, the law relating to womencarries the stamp of its double origin. The principle of theRoman jurisprudence is so far triumphant that unmarried femalesare generally (though there are local exceptions to the rule)relieved from the bondage of the family; but the archaicprinciple of the barbarians has fixed the position of marriedwomen, and the husband has drawn to himself in his maritalcharacter the powers which had once belonged to his wife's malekindred, the only difference being that he no longer purchaseshis privileges. At this point therefore the modern law of Westernand Southern Europe begins to be distinguished by one of itschief characteristic, the comparative ******* it allows tounmarried women and widows, the heavy disabilities it imposes onwives. It was very long before the subordination entailed on theother *** by marriage was sensibly diminished. The principal andmost powerful solvent of the revived barbarism of Europe wasalways the codified jurisprudence of Justinian, wherever it wasstudied with that passionate enthusiasm which it seldom failed toawaken. It covertly but most efficaciously undermined the customswhich it pretended merely to interpret. But the Chapter of lawrelating to married women was for the most part read by thelight, not of Roman, but of Canon Law, which in no one particulardeparts so widely from the spirit of the secular jurisprudence asin the view it takes of the relations created by marriage. Thiswas in part inevitable, since no society which preserves anytincture of Christian institution is likely to restore to marriedwomen the personal liberty conferred on them by the middle Romanlaw, but the proprietary disabilities of married females stand onquite a different basis from their personal incapacities, and itis by keeping alive and consolidating the former that theexpositors of the Canon Law have deeply injured civilisation.