Page:The early history of the property of married women.djvu/16

12 One of the oldest and most authoritative of the Hindoo juridical writers quotes a rule from Manu, which, taken as it stands, can bear no meaning except that at one period of Hindoo law the whole of a married woman's property was enjoyed by her independently of her husband's control. Whether any such doctrine was really contained in any treatise, passing under the name of the mythical personage given as the authority for it, it is impossible to say; but it may be believed that some such rule was attributed to a venerable antiquity. Nevertheless, it must be admitted that there are some difficulties in receiving it. The existing Hindoo written law, which is a mixed body of religious, moral, and legal ordinances, is pre-eminently distinguished by the strictness with which it maintains a number of obligations, plainly traceable to the ancient despotism of the family, and by its excessive harshness to the personal and proprietary liberty of women. Among the Aryan sub-races, the Hindoos may be as confidently asserted as the Romans to have had their primitive society organised as a collection of patriarchally-governed families. If then, at any early period, the married woman had among the Hindoos the property altogether enfranchised from the husband's control, it is a mystery, not easy to unravel, why the obligations of the family despotism were relaxed in this one particular. It is also to be recollected that, supposing the rule of which I am speaking to be extremely old, the student of very old law is liable to one special misapprehension. He is in danger of taking as a rule what the ancient legislator intended as an exception. A dispute having arisen as to the legality of an unusual and occasional practice, the legislator thinks fit to declare it legal, trusting all the while, consciously or unconsciously, to habit, sentiment, or prejudice, to prevent its extending itself in a way which, to him, as doubtless to the great bulk of the community, would appear not merely mischievous, but revolting. This, as I said before, is, doubtless, the true explanation of several broad rules of the Roman Twelve Tables which we know to have been subsequently modified by legislation or juridical interpretation, and there may be some similar explanation of the ancient Hindoo rule securing to the married woman the full control of her property. Nevertheless, there are really, in many branches of the Hindoo law, and in a great number of the bodies of unwritten custom which exist by its side, very clear indications of a sustained effort on the part of the Brahminical writers on mixed law and