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]