The Guardianship of a Woman, Part III: The Origins of Guardianship For Women

[The Guardianship of a Woman FULL ARTICLE PDF here (link stays on-site)]

 

The Origins of Guardianship for Women

 

But my heart is saddened inside every time that I think about the world that I live in; about those who would ever want to take that love and that protection away from me. Who is to say that our ancestors were wrong and that we are somehow right today? And will the future generations that succeed us believe that we were right and “enlightened” and “forward-thinking,” or will they look upon what we have done, what we have allowed, with horror and be scandalized?

The roots of guardianship for women are ancient. Among the Romans a woman initially entered into what was called manus marriage, where she left her father’s household and came under the manus, or control and power, of her husband. Scholars apparently do not know much about this form of marriage, which was already becoming obsolete (perhaps even “barbaric,” “crude,” and- dare someone say- “misogynistic?”) by the time of Rome’s classical period (the height of the empire before its decline and fall). As Bruce W. Frier and Thomas A.J. MgGinn relate:

The older form of Roman marriage involved the subjection of the wife to the control (manus) of her husband. This form of marriage was fast becoming obsolete already by the beginning of the classical period of Roman private law, and accordingly we know less about it than we would like…

One of the most remarkable features of Roman family law is that the Romans went through a transition from an archaic form of marriage featuring the wife’s legal subjection to her husband to a form of marriage resting almost entirely upon voluntary cooperation between the spouses, without, as it seems, passing through any intermediate stage.[12]

After the decline of manus marriage, Roman marriage began to look very much like the practice of the Western world in modern times, with marriages becoming highly unstable with a complete separation of husband and wife in all areas of life, sometimes to very sad and devastating outcomes.

Still in antiquity, guardianship of women is to be found even in Mosaic law. Women held a very high status as wives and mothers in the “Old Testament,” and Mosaic law placed women under the protection and guardianship of their husbands and fathers. In the “Old Testament” of the Bible, Numbers 30 relates that a father or husband may void any vows that a daughter or a wife makes unto the Lord. This is somewhat reminiscent of coverture under the traditional English and American common-law where a woman could not enter and bind herself in any contract without the express consent of her husband (and who in a lawsuit had to be the plaintiff or defendant in any suit initiated by or against the wife).

And Moses spoke unto the heads of the tribes concerning the children of Israel, saying, This is the thing which the Lord hath commanded.

If a man vow a vow unto the Lord, or swear an oath to bind his soul with a bond; he shall not break his word, he shall do according to all that proceedeth out of his mouth.

If a woman also vow a vow unto the Lord, and bind herself by a bond, being in her father’s house in her youth;

And her father hear her vow, and her bond wherewith she hath bound her soul, and her father shall hold his peace at her: then all her vows shall stand, and every bond wherewith she hath bound her soul shall stand

Bur if her father disallow her in the day that he heareth; not any of her vows, or of her bonds wherewith she hath bound her soul, shall stand: and the Lord shall forgive her, because her father disallowed her.

And if she had at all a husband, when she vowed, or uttered ought out of her lips, wherewith she bound her soul;

And her husband heard it, and held his peace at her in the day that he heard it: then her vows shall stand, and her bonds wherewith she bound her soul shall stand.

But if her husband disallowed her on the day that he heard it; then he shall make her vow which she vowed, and that which she uttered with her lips, wherewith she bound her soul, of none effect: and the Lord shall forgive her.

But every vow of a widow, and of her that is divorced, wherewith they have bound their souls, shall stand against her.

And if she vowed in her husband’s house, or bound her soul by a bond with an oath;

And her husband heard it, and held his peace at her, and disallowed her not: then all her vows shall stand, and every bond wherewith she bound her soul shall stand.

But if her husband hath utterly made them void on the day he heard them; then whatsoever proceeded out of her lips concerning her vows, or concerning the bond of her soul, shall not stand: her husband hath made them void; and the Lord shall forgive her

Every vow, and every binding oath to afflict the soul, her husband may establish it, or her husband may make it void.

But if her husband altogether hold his peace at her from day to day; then he establisheth all her vows, or all her bonds, which are upon her: he confirmeth them, because he held his pace at her in the day that he heard them.

But if he shall any ways make them void after that he hath heard them; then he shall bear her iniquity

These are the statutes, which the Lord commanded Moses, between a man and his wife, between the father and his daughter, being yet in her youth in her father’s house.[13]

Coming to our own history, the very word “wedding” itself has its roots in one of the most ancient forms of contract consisting of the transfer of a woman’s guardianship from her birth family to her husband:

In order to conclude a contract Anglo-Saxon law required numerous external acts, and several of these survived for many centuries. First of all there was the wed, which after the Norman Conquest was called a gage, and consisted of a valuable object which was delivered by the promisor either to the promisee himself or to a third party as security for carrying out the contract…

The occasions upon which it became necessary to contract during the Anglo-Saxon age were mainly of two types. In the first place the solemn ceremonies by which a betrothal was effected were essentially contractual, for the betrothal was in effect a contract for a sale. The Anglo-Saxon marriage on its civil side (which was independent of the Church’s sacramental views) still consisted of the sale by the woman’s kinsfolk of the jurisdiction or guardianship over her (which they called mund) to the prospective husband. Even after this ceased to be a strictly commercial transaction, betrothal and marriage ceremonies retained a good many survivals of the older order- Maitland has described the marriage forms of the Church of England as “a remarkable cabinet of legal antiquities,” and the Episcopal Church of America has also retained most of them. The betrothal was effected by the delivery of a wed and thus became a “wedding,” that is to say, the conclusion of a contract for a future marriage.[14]

The roots of marriage forming a type of guardianship over a woman are ancient, then. Are we supposed to say that our way is any better? Are we happier? Are men, women and children prospering, happier, less suicidal, less depressed, less anxious, less lonely than our ancestors? Are we truly to say that it is better to take a woman away from the love and protection and guardianship of a man who is yet sworn to provide for and protect her- and her alone- for a lifetime, forsaking all others and whatever they may say or do in the process?  What woman could not look upon the writings of Blackstone and the writings of the ancients, learned and knowledgeable in the law, and not feel some sort of deep desire, longing, and stirring within her heart at the love and deep passion that being one- physically, legally- spiritually perhaps- if one wishes to carry it that far- with a man that she loves?

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for that grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage. A woman indeed may be attorney for her husband; for that implies no separation from, but is rather a representation of, her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death. The husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them he is obliged to pay them; but, for anything besides necessaries, he is not chargeable. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries; at least if the person, who furnishes them, is sufficiently apprized of her elopement. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together. If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued, without making the husband a defendant.[15]

She is covered, protected, cherished by him. What greater love can there be on this earth? What woman, secure in her femininity, does not dream of such lasting love? To take her out of that love, that protection, that civil disability where she is under the guardianship of her husband, then husband and wife lead a separate existence. Marriage is then rendered either unstable or, as is the way in the modern era, near obsolete.


 

[12] Bruce W. Frier & Thomas A.J. McGinn, A Casebook on Roman Family Law (New York, 2004), p. 88. See also ibid., pp. 89-94, cases 37-40 for specific cases regarding a wife’s status under Roman manus marriage regarding property, succession and divorce.

[13] Numbers 30:1-16 (King James).

[14] Plucknett, A Concise History of the Common Law, pp. 628-29.

[15] Blackstone, Commentaries on the Laws of England Book the First, pp. 442-43.

Advertisements