When the bride receives the ring upon her finger, and utters--if she utters it--the promise to obey, she sees a poetic beauty in the rite. Turning of her own free will from her maiden liberty, she voluntarily takes the yoke of service upon her. This is her view; but is this the historic fact in regard to marriage? Not at all. The pledge of obedience--the whole theory of inequality in marriage--is simply what is left to us of a former state of society, in which every woman, old or young, must obey somebody. The state of tutelage, implied in such a marriage, is merely what is left of the old theory of the "Perpetual Tutelage of Women," under the Roman law.
Roman law, from which our civil law is derived, has its foundation evidently in patriarchal tradition. It recognized at first the family only, and that family was held together by paternal power _(patria potestas)_. If the father died, his powers passed to the son or grandson, as the possible head of a new family; but these powers could never pass to a woman, and every woman, of whatever age, must be under somebody's legal control. Her father dying, she was still subject through life to her nearest male relations, or to her father's nominees, as her guardians. She was under perpetual guardianship, both as to person and property. No years, no experience, could make her anything but a child before the law.
In Oriental countries the system was still more complete. "A man," says the Gentoo Code of Laws, "must keep his wife so much in subjection that she by no means be mistress of her own action. If the wife have her own free will, notwithstanding she be of a superior caste, she will behave amiss." But this authority, which still exists in India, is not merely conjugal. The husband exerts it simply as being the wife's legal guardian. If the woman be unmarried or a widow, she must be as rigorously held under some other guardianship. It is no uncommon thing for a woman in India to be the ward of her own son. Lucretia Mott or Florence Nightingale would there be in personal subjection to somebody. Any man of legal age would be recognized as a fit custodian for them, but there must be a man.
With some variation of details at different periods, the same system prevailed essentially at Rome, down to the time when Rome became Christian. Those who wish for particulars will find them in an admirable chapter (the fifth) of Maine's "Ancient Law." At one time the husband was held to possess the _patria potestas_, or paternal power, in its full force. By law "the woman passed _in manum viri_, that is, she became the daughter of her husband." All she had became his, and after his death she was retained in the same strict tutelage by any guardians his will might appoint. Afterwards, to soften this rigid bond, the woman was regarded in law as being temporarily deposited by her family with her husband; the family appointed guardians over her; and thus, between the two tyrannies, she won a sort of independence. Then came Christianity, and swept away the merely parental authority for married women, concentrating all upon the husband. Hence our legislation bears the mark of a double origin, and woman is half recognized as an equal and half as a slave.
It is necessary to remember, therefore, that all the relation of subjection in marriage is merely the residue of an unnatural system, of which all else is long since outgrown. It would have seemed to an ancient Roman a matter of course that a woman should, all her life long, obey the guardians set over her person. It still seems to many people a matter of course that she should obey her husband. To others among us, on the contrary, both these theories of obedience seem barbarous, and the one is merely a relic of the other.
We cannot disregard the history of the Theory of Tutelage. If we could believe that a chrysalis is always a chrysalis, and a butterfly always a butterfly, we could easily leave each to its appropriate sphere; but when we see the chrysalis open, and the butterfly come half out of it, we know that sooner or later it must spread wings, and fly. The theory of tutelage implies the chrysalis. Woman is the butterfly. Sooner or later she will be wholly out.
[The end]
Thomas Wentworth Higginson's essay: Woman In The Chrysalis