The historians' history of the world in twenty-five volumes, volume 05

by Unknown

The guardian’s authority was not quite similar to the parental authority. Its limits were rigorously determined by the very purpose of guardianship. The guardian had all the power necessary to safeguard the woman’s patrimony, nothing less—but nothing more.

Thus in the first case, his authority only extends to the fortune of the woman, not to her person. He has no control over the conduct of his ward, nor is it his prerogative to watch over her behaviour, or inquire into those of her acts which only affect her personally, and do not touch her fortune. For example, in the matter of marriage, all the pecuniary agreements which so often accompany it have to be authorised by the guardian; his consent is necessary, either to fix the dowry, or for the conventio in manum, which involves, as will be seen, a kind of general community of interest. But as for the marriage itself, how can it concern or prejudice the interests of the guardian, since the agnates, and not the children of the marriage, will inherit at the woman’s death? Thus the guardian’s authority is not necessary, either for the celebration of the marriage or in the choice of a husband. The woman herself chooses her husband, assisted sometimes, according to her age, by the advice of her mother and of her near relatives. Nor do all pecuniary transactions need the intervention of the guardian. Ulpian has given us the list, and we can separate the different proceedings that he enumerates, into two classes, the informal and the formal. In the first class we only find the alienations of res mancipi, either by direct or indirect covenants. Res mancipi were houses, lands, rustic servitude, slaves, beasts of burden—in a word, the soil and what was necessary to cultivate it; these were patrimonial property, and as the mainstay of the family, were placed under the vigilance and care of the guardian, so that their preservation was guaranteed. But besides this inalienable patrimony which she could not touch, the woman still had a large field of administration; she could acquire all sorts of property, dispose of the products of her fields and farm them out, dispose of her money—and thus pay her debts, recover her credit, lend, sell, bargain, and make free gifts.

For the formal proceedings, on the contrary, the law makes no distinctions and the guardian’s authority is always necessary. This will, at first sight, seem so little in harmony with the preceding that an explanation has been sought in considerations foreign to the principles of wardship. It has been said that the formal proceedings which usually took place before the magistrate, or before the witnesses who represented the Roman people, had too much resemblance to political proceedings to be permitted to others than citizens, and since woman was excluded from the comitia, she ought to be excluded from the Forum as well. But it is not true that the law courts were always closed to women, even at the time when all processes were under the form of a legis-actio; not only could she appear before the judges accompanied by her guardian, but she could even appear alone, either as a witness or as a representative of some one else—that is to say, whenever her personal interest was not at stake. She could also execute certain formal acts alone, as, for instance, emancipation, when she was under paternal authority; here again, the act could not touch her patrimony, as she had none. These are the cases in which the guardian’s authority was not necessary, although the proceeding was formal and these acts are just those which cannot touch or diminish the patrimony. Is it not, then, permissible to conclude that where the guardian can intervene in such cases, it is not on account of the formalities which surround them, it is because of the alienation they involve?

So far we have only spoken of natural guardians. But there are other kinds of guardians, and the Roman lawyers place the testamentary guardians first.

The father of the family, supreme in his own household, could, as we have already seen, dispose as he liked of the domestic patrimony; a strong reason, if he left a son and a daughter, for depriving the son of all rights of control and of the care of his sister’s hereditary portion, by taking the daughter away from his guardianship. How was this to be accomplished? By making over in his will the guardianship of his daughter to a stranger; this is testamentary guardianship. This guardianship almost amounted to independence for the woman, the testamentary guardian being a stranger to the family and having no right of succession to his ward’s property. What interest would he have in preventing her from disposing of her fortune as she pleased? To allow the father to choose a guardian for his daughter was really to allow his daughter to be free of all real and efficacious tutelage. We stop here, and will not tell how testamentary guardianship served as a model to the other kinds of wardships, how by the usurpation of these different nominal guardians the real guardianship, that of the family, was little by little restricted and undermined. We should be no longer describing this institution—we should be telling of its decay and downfall.

No legislators have better defined marriage than have those of ancient Rome. “It is the union of two lives, the blending of two inheritances, a common interest in everything religious and temporal.” In this ancient notion of marriage we find the two principles which are the foundation of Christian and modern marriage—the indissolubility of the bond and monogamy.

We found in Greece something of oriental polygamy. In Italy, on the contrary, monogamy is as ancient as the foundation of Rome. It entered so deeply into the habits of the Romans that when later they introduced into the constitution a freer form of conjugal union, concubinage, they considered it, like legitimate marriage, under the law of monogamy. And this law could not be eluded, as at Athens, by the legitimisation of natural children. The ancient Roman law always excluded the natural children from the family circle. It admitted no legitimisation nor recognition; and that illegitimacy might not be hidden under the mask of adoption, such adoption was itself subject to an investigation by the pontiffs and the ratification of the entire people.

The principle of monogamy had its natural complement in the indissolubility of marriage, for marriage with a possible divorce is, as has been said, but a progressive polygamy. Marriage in ancient Rome was indissoluble. Doubtless this indissolubility is not written in the law. Roman legislation would not, as we have seen, touch family independence, nor tighten by legal constraint ties that natural affection had formed. But if divorce is authorised by the law, it is forbidden by religion and custom; the man who repudiates his wife is branded by the censor, he is excommunicated by the priest, and can only atone for his fault by sacrificing a portion of his worldly wealth at the altar of the divinities that presided at his union. This moral sanction was much more efficacious than the laws ever were. Divorce was not illegal, but morally it was impossible; and all the writers of antiquity agree in saying that they have only heard of one during five centuries.

It is sufficient to remember these two fundamental principles, which are as old as Rome—namely, monogamy and the indissolubility of marriage—to show the value of the vulgar opinion which represents marital power in ancient Rome as the most odious of all tyrannies. It is difficult to believe that the husband was a despot and the wife a slave, where an inviolable fidelity was the reciprocal duty of the two; and a closer study will convince us that a Roman marriage was a real union in which the husband’s authority did not exclude the independence of the wife. But to be certain in what this independence consisted, two kinds of marriage must be distinguished. Sometimes the wife, though married, lived at home under the authority of her father, or the guardianship of her agnates; sometimes these ties were broken by marriage and the wife went, according to the technical expression, in manum mariti, and had no other family than her husband’s. This last kind of marriage is without doubt the more ancient. The antiquity of its origin is revealed in the particular customs that went with it, and which are found, almost identically the same, in the most ancient legislations. It is then most probable that during the first centuries of Rome, the manus mariti was the inevitable result of marriage. From the day the newly married couple had offered a joint sacrifice to the divinities in the nuptial chamber, the wife had no other family agnates or heirs than her husband and his relatives. What became of the wife’s former family ties, the rights of the agnates to her guardianship and to her inheritance? Marriage had destroyed them forever. But in this there was a danger to which the legislators had soon to give their attention. The guardians of the wife cannot have been very ready to consent to a marriage which deprived them of all their rights, and without their consent marriage was impossible. Could they have been compelled to give up their rights? But these rights were sacred to the guardians of the family interest; for them it was a duty to prevent the patrimony of their ancestors from passing into the hands of strangers. To satisfy all conflicting claims, the ancient principle had to be entirely altered. Two things had to be separated which until then had seemed inseparable—marriage and the manus, that is to say, the change of family. Side by side with the ancient marriage accompanied by the regular formalities, a new marriage was devised which was contracted simply by consent and left the wife in her family under the guardianship of her agnates. The consent of the guardians was always necessary for the ancient marriage with manus; but it was not required for the marriage pure and simple, which left the rights of the agnates intact. This revolution in the family usage was already accomplished, or nearly so, at the time of the laws of the Twelve Tables.

For the rest, the introduction of a new form of marriage did not insure the abandonment of the old, for both could in diverse cases in turn satisfy the same need. If the wife, at the time of her marriage, was not under a guardian, but under the parental authority, that is to say without patrimony, the conventio in manum could only benefit the agnates; for it was equivalent to the compact of renunciation, which, in ancient French law, so often accompanied marriage contracts. Thus, the same interest, that of preserving the patrimonial wealth, caused the introduction for the heiress of the marriage without manus, and maintained the marriage with manus for the daughter who had not already inherited.[d]