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.