The Historians' History of the World 05

In the almost patriarchal constitution of ancient Rome, the preservation of families was of great public importance and the laws were always made to benefit it. The domestic ties, always so close whilst the head of the family lived, were not broken at his death; the hereditary possessions, whilst they were divided amongst the children, did not the less remain the patrimony of the family; the perpetual worship due to the spirit of the ancestors and to the household gods remained a common debt. But supposing that amongst the children there was a daughter, the hereditary share she was to receive would not be safe in her hands; it was to be feared that one day she would try to enrich the family she had entered at the expense of her own. It was to guard against this danger, it was to perpetuate in each family, together with the preservation of hereditary possessions, the memory of its ancestors and the glory or dignity of the house, that the Romans deprived woman of the free possession of her property and placed her under the perpetual guardianship of her agnates. This guardianship was not, then, established in the interest of woman, on account of her weakness and natural incapacity; it was established against her and in the interests of the guardians themselves.

This view, we must admit, has received many contradictions even in antiquity. Cicero, Ulpian, Isidorus de Sevilla, are unanimous in saying if the law has placed women under guardianship, it is on account of the weakness of their sex, their ignorance, their inexperience, their frivolity.

But listen to Gaius, the only writer amongst the ancients who discusses and sifts the question: “The vulgar opinion,” he says, “is that women must be directed by guardians, because their minds are too shallow to govern themselves. This guardianship has been established in the interest of the guardians, so that the women, whose presumptive heirs they are, can neither deprive them of their inheritance by a will, nor cripple it by gifts or by debts.”

Is it necessary to add another proof to the authority of Gaius? Here is one which seems irrefutable. Woman was placed under the paternal power, and, as has been already said, could make a legal contract. Once placed under a guardian, on the contrary, she can no longer contract debts without her guardian’s permission. Why this strange contradiction? Why should woman, capable of acting whilst she is under a father’s authority, become incapable as soon as she is freed from that authority? In the two cases, her frivolity, her weakness are evidently the same; here is the only difference: the daughter under paternal authority has no wants, and in indulging herself she only pledges herself; but the orphan or emancipated girl has a patrimony; if she pleased herself she would engage her patrimony and in this way compromise the inheritance of her family, of her future heirs. This reveals to us the spirit of the law. Woman is placed under a guardian because she has a fortune to leave behind her; it is done to protect her heirs and not to insure her own protection.

It will now be guessed to whom the law gave the guardianship; perhaps only to her next heirs, that is to say to her agnates, her nearest relatives; if she were a freed slave, to her masters. For natural guardians it was not an office, but a right—a family possession. They had no accounts to render; if they were infirm, in a state of infancy, idiocy, or insanity, they would still retain their rights to this guardianship, except that in that case it would be executed by deputy. But if they could not be deprived of this right they could resign it, and give it to some one in their place; the legitimate guardian could dispose of his ward by an in jure cessio

, as he could dispose of his house or field.

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.