第44章

It may be shown, I think, that the Family, as held togetherby the Patria Potestas, is the nidus out of which the entire Lawof Persons has germinated. Of all the chapters of that Law themost important is that which is concerned with the status ofFemales. It has just been stated that Primitive Jurisprudence,though it does not allow a Woman to communicate any rights ofAgnation to her descendants, includes herself nevertheless in theAgnatic bond. Indeed, the relation of a female to the family inwhich she was born is much stricter, closer, and more durablethan that which unites her male kinsmen. We have several timeslaid down that early law takes notice of Families only; this isthe same thing as saying that it only takes notice of personsexercising Patria Potestas, and accordingly the only principle onwhich it enfranchises a son or grandson at the death of hisParent, is a consideration of the capacity inherent in such sonor grandson to become himself the head of a new family and theroot of a new set of Parental Power. But a woman, of course, hasno capacity of the kind, and no title accordingly to theliberation which it confers. There is therefore a peculiarcontrivance of archaic jurisprudence for retaining her in thebondage of the Family for life. This is the institution known tothe oldest Roman law as the Perpetual Tutelage of Women, underwhich a Female, though relieved from her Parent's authority byhis decease, continues subject through life to her nearest malerelations as her Guardians. Perpetual Guardianship is obviouslyneither more nor less than an artificial prolongation of thePatria Potestas, when for other purposes it has been dissolved.

In India, the system survives in absolute completeness, and itsoperation is so strict that a Hindoo Mother frequently becomesthe ward of her own sons. Even in Europe, the laws of theScandinavian nations respecting women preserved it until quiterecently. The invaders of the Western Empire had it universallyamong their indigenous usages, and indeed their ideas on thesubject of Guardianship, in all its forms, were among the mostretrogressive of those which they introduced into the Westernworld. But from the mature Roman jurisprudence it had entirelydisappeared. We should know almost nothing about it, if we hadonly the compilations of Justinian to consult; but the discoveryof the manuscript of Gaius discloses it to us at a mostinteresting epoch, just when it had fallen into completediscredit and was verging on extinction. The great jurisconsulthimself scouts the popular apology offered for it in the mentalinferiority of the female sex, and a considerable part of hisvolume is taken up with descriptions of the numerous expedients,some of them displaying extraordinary ingenuity, which the Romanlawyers had devised for enabling Women to defeat the ancientrules. Led by their theory of Natural Law, the jurisconsults hadevidently at this time assumed the equality of the sexes as aprinciple of their code of equity. The restrictions which theyattacked were, it is to be observed, restrictions on thedisposition of property, for which the assent of the woman'sguardians was still formally required. Control of her person wasapparently quite obsolete.