Page:Harvard Law Review Volume 8.djvu/64

48 48 HARVARD LAW REVIEW. of the head of a family, its male members themselves became patresfamilias, and succeeded to that power hitherto wielded by their father. Even in the lifetime of the parent independence was possible for the son. His father was able to emancipate him; thereby, it is true, the son lost all legal relationship to the family which had hitherto claimed him as a member. But, in return for this loss, he became sni Juris, as the Roman lawyers expressed it; that is, independent of all authority save the state's. No such emancipation, either in her father's lifetime or after his death, ever fell to a woman's lot. In this respect, a slave was more fortunate, for freedom was possible for him. Even the full-grown woman was subject to the same restraint as a boy that had not yet reached the age of puberty. Whether single or married, the death of father or husband made no difference in a woman's legal position. It was utterly impossible for either husband or father to emanci- pate wife or daughter, no matter how intensely he might have longed to do so. For, if at her father's death no provision was made by testament for the female child's guardianship, the law supplied her with guardians. The same rule held when a hus- band's testament failed to provide guardians for his wife. In the ancient Roman law, women were always children ; this condition being called by the jurist the perpetual tutelage of woman. " A sex created to please and obey," to quote the words of Gibbon,^ "was never supposed to have attained the age of reason and expe- rience," In this life-long bondage of woman do we find further testimony of the overwhelming importance of the family in ancient society. This peculiar contrivance of archaic jurisprudence to keep a woman in the bondage of her family for life is obviously but an artificial prolongation of that most important factor of the primitive family, the patria potestas, when for other purposes it has been dissolved.^ This intimate connection between the guar- dianship of woman and family law is very plainly seen, if it be noticed upon what persons the law threw the tutelage of women. For, since the maiden succeeded to a share of her father's estate, at his death, the nearest male relatives of the deceased, in case the latter himself had made no appointment by testament, became her legal guardians. While, if married, since the wife succeeded to a share of her husband's property upon his decease, the latter's nearest male relatives were called by law to the wife's guardian- 1 Decline and Fall, ch. 44. 3 Maine, Ancient Law, New York, 1878, pp. 147-148.