The Historians' History of the World 05

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.