Henry Sumner Maine

“ All we need at present note is that the so-called enfranchisement of women is merely a phase of a process which has affected very many other classes, the substitution of individual human beings for compact groups of human beings as the units of society. Now, it is true that in the legal institutions of the Hindoos (political institutions, I need scarcely say, for many centuries they have had none) the despotism of the family group over the men and women composing it is maintained in greater completeness than among any society of similar civilisation and culture. ”

“ Taking the conceptions which have their root in the family relation—what we call property, what we call marital right, what we call parental authority, were all originally blended in the general conception of patriarchal power. ”

“ If, leaving the Family, we pass on to the group which stands next above it in the primitive organisation of society—that combination of families, in a larger aggregate, for which at present I have no better name than Village Community—we find it impossible to understand the extant examples of it, unless we recognise that, in the infancy of ideas, legislative, judicial, executive, and administrative power are not distinguished, but considered as one and the same. ”

“ For, inasmuch as no class of similar importance and extent was, in the infancy of society, placed in a position of such absolute dependence as the other sex, the degree in which this dependence has step by step been voluntarily modified and relaxed, serves undoubtedly as a rough measure of tribal, social, national capacity for self-control—of that same control which produces wealth by subduing the natural appetite of living for the present, and which fructifies in art and learning through subordinating a material and immediate to a remote, intangible, and spiritual enjoyment. ”

“ There has been much speculation of late among writers belonging to the school of so-called pre-historic inquiry as to the place in the history of human society to which this peculiar group, the Patriarchal Family, is entitled. Whether, however, it has existed universally from all time—whether it has existed from all time only in certain races—or whether in the races among whose institutions it appears, it has been formed by slow and gradual development—it has, everywhere, where we find it, the same character and composition. ”

“ Not only has the woman singularly full power of dealing with the Stridhan—not only is the husband debarred from intermeddling with it, save in extreme distress—but, when the proprietress dies, there is a special order of, succession to her property, which is manifestly intended to give a preference, whereever it is possible, to female relatives over males. ”

“ I do not indeed say, considering the vast antiquity now claimed for the human race, that our very first forefathers troubled themselves about the matter; but nothing can be more certain than that very soon after those divisions of mankind which were destined to ultimate greatness are seen in possession of the institution which was the one condition of their progress to civilisation—the Family—they are discerned grappling with the very same problem, no doubt in an early form, which we ourselves have hardly yet succeeded in solving. ”

“ In addition to many other objections which may be urged against the common allegation that the legal disabilities of women are merely part of the tyranny of sex over sex, it is historically and philosophically valueless, as indeed are all propositions concerning classes so large as sexes. What really did exist is the despotism of groups over the members composing them. What really is being relaxed is the stringency of this despotism. ”

“ If we were asked why the two societies with which we have been concerned this evening—the Hindoos on the one hand, and the Romans and all the races to which they have bequeathed their institutions on the other—have had so widely different a history, no reply can be very confidently given, so difficult is it, among the vast variety of influences acting on great assemblages of men, to single out any one or any definite number of them, and to be sure that these have operated more powerfully than the rest. ”

“ But in this, as in several other particulars, very ancient and undeveloped law reverses the ideas of the modern jurist, and uniformly prefers distribution per capita, exactly equal division between all the surviving members of the family; and this is apparently on the principle that, all having been impartially subject to a despotism which knew no degrees, all ought to share equally on the dissolution of the community by the death of its chief. ”

“ The disuse of all practices which a scholar could show to be relatively modern would dissolve the whole Hindoo system. These inquiries, pushed much further, have shown that the Hindoo laws, religious and civil, have for centuries been undergoing transmutation, development, and, in some points, depravation at the hands of successive Brahminical expositors, and that no rules have been so uniformly changed—as we should say, for the worse—as those which affect the legal position of women. ”

“ The assertion, then, that there is a relation between civilisation and the proprietary capacities of women is only a form of the truth that every one of those conquests, the sum of which we call civilisation, is the result of curbing some one of the strongest, because the primary, impulses of human nature. ”

“ All beginners in law have heard of the difference between distributing an inheritance per stirpes and distributing it per capita. A man has two sons, one of whom has eight children, and the other two. The grandfather dies, his two sons having died before him, and the grandfather's property has to be divided between the grandchildren. If the division is per stirpes the stocks of the two sons will be kept separate, and one half of the inheritance will be distributed between the eight grandchildren, and the other half between the two. ”

“ The group consist of animate and inanimate property, of wife, children, slaves, land, and goods, all held together by subjection to the despotic authority of the eldest male of the eldest ascending line, the father, grandfather, or even, more remote ancestor. The force which binds the group is Power, and any other source of union, such as blood relationship, is altogether secondary. A child adopted into the Patriarchal family belongs to it as perfectly as the child naturally born into it, and a child who severs his connection with it is lost to it altogether. ”

“ In itself the fact that women, married and unmarried, are placed, on the whole, by Hindoo institutions in a position of great degradation would not, unfortunately, be exceptional or remarkable. What really has interest for the student of historical jurisprudence is the comparative recency of this degradation. The family despotism is proved by overwhelming evidence to have been so stringent among the Hindoos that there would be nothing astonishing in the weakest of the classes subject to it not having been yet emancipated from it. ”

“ Unmarried women, originally in no different position from married women, acquire at first a much higher degree of proprietary independence. The unmarried woman is for life under the guardianship of her male relatives, whose primitive duty was manifestly to prevent her alienating or wasting her possessions, and to secure the ultimate reversion of these possessions to the family to whose domain those possessions had belonged. But the powers of the guardians are undergoing slow dissolution through the two great sapping agencies of jurisprudence, Legal Fictions and Equity. ”

“ All the larger groups which make up the primitive societies in which the Patriarchal family occurs, are seen to be mere multiplications of it, and to be, in fact, themselves palpably formed on its model. ”

“ The most liberal of the Hindoo schools of jurisprudence, that prevailing in Bengal Proper, gives a childless widow the enjoyment of her husband's property, under certain restrictive conditions, for her life; and in this it agrees with many bodies of unwritten local custom. If there are male children, they succeed at once; but if there are none, the widow comes in for her life before the collateral relatives. ”

“ But that women should have become partially enfranchised, and should then have fallen back into a condition yet worse than the first, is really a surprising passage in legal history. There would be great temerity in pretending to advance anything like a complete explanation of it, and the best account that can be given does not, perhaps, amount to more than a plausible conjecture. ”

“ It has been said that the degree in which the personal immunity and proprietary capacity of women are recognised in a particular state or community is a test of its degree of advance in civilisation; and, though the assertion is sometimes made without the qualifications which are necessary to give it value, it is very far indeed from being a mere gallant commonplace. ”

“ But some of the institutions which the Romans and Hindoos once had in common may be seen actually flourishing in India, under the protection of English Courts of Justice.
The two societies, Roman and Hindoo, which I take up for examination, with the view of determining some of their earliest ideas concerning the property of women, are seen to be formed at what, for practical purposes, is the earliest stage of their history, by the multiplication of a particular unit or group, the Patriarchal Family. ”

“ But, when first we view the Patriarchal family through perfectly trustworthy evidence, it is already in a state of decay. The emancipation or enfranchisement of male children from parental power by the parents' voluntary act, has become a recognised usage, and is one among several practices, which testify a relaxation of the stricter ideas of a more remote antiquity. Confining our attention to women, we find that they have begun to inherit a share of the property of the family concurrently with their male relatives ”

“ Whatever be the exact explanation, the Brahminical commentators who succeed one another in the Hindoo juridical schools show a visibly increasing desire to connect all property with the discharge of sacrificial duties, and with this desire the reluctance to place property in the hands of women is assuredly somehow connected. ”

“ Whether this relaxation is destined to end in utter dissolution—whether, on the other hand, under the influence either of voluntary agreement or of imperative law, society is destined to crystallise in new forms—are questions upon which it is not now material to enter, even if there were any hope of solving them. ”

“ A preference for decision per stirpes, a minute care for the preservation of the stocks, is in fact very strong evidence of the growth of a respect for individual interests inside the family, distinct from the interests of the family group as a whole. This is why the place given to distribution per stirpes shows that a given system of law has undergone development, and it so happens that this place is very large in Hindoo law, which is extremely careful of the distinction between stocks, and maintains them through long lines of succession. ”

“ That society, which once consisted of compact families, has got extremely near to the condition in which it will consist exclusively of individuals, when it has finally and completely assimilated the legal position of women to the legal position of men. ”

“ The successive generations of Hindoo commentators have shown their hostility to it, not by abolishing it, but by limiting to the utmost of their power the circumstances under which it can arise. Minute distinctions are drawn between the various modes in which property may devolve upon a woman, and the conditions under which such property may become Stridhan are made as rare and exceptional as possible. The aim of the lawyers was to add to the family stock, and to place under the control of the husband as much as they could of whatever came to the wife by inheritance or gift ”

“ It will probably be conceded by all who have paid any attention to our subject, that the civilised societies of the West, in steadily enlarging the personal and proprietary independence of women, and even in granting to them political privilege, are only following out still further a law of development which they have been obeying for many centuries. ”

“ But, as a matter of fact, the Christian Church conferred few civil benefits of greater moment to several generations of mankind than in keeping alive the traditions of the Roman legislation respecting settled property, and in strenuously exerting itself to extend and apply the principles of these disciplinary laws. ”

“ These systems are very far indeed from being the only sources from which information can be gathered concerning the infancy of mankind, or even concerning the Aryan race of men. But the evidence supplied by each of them is highly authentic, and, while both of them run back to what may fairly be called a vast antiquity, they both assume at their starting point the existence of the institution, by no means apparently universal among savage men, out of which, as I said, all civilisation has grown—the Family. ”

“ Inasmuch as the condition of the dead could be ameliorated by proper expiatory rites, the property descending or devolving on a man came to be regarded by these writers partly as a fund for paying the expenses of the ceremonial by which the soul of the person from whom the inheritance came could be redeemed from suffering or degradation, and partly as a reward for the proper performance of the sacrifices. ”

“ For our present purpose, it is necessary to regard this newer marriage just when it had superseded the ancient and stricter usages of wedlock, and just before it began to be modified by the modern and much severer principles of Christian community. For at this point in the history of marriage, we come upon the beginnings of that system of settling the property of married women which has supplied the greatest part of Continental Europe with its law of marriage settlement. ”