THE 
 
 EARLY HISTORY 
 
 PROPERTY OF MARRIED WOMEN, 
 
 AS COLLECTED FROBI ROMAN AND HINDOO LAW. 
 
 Delivered at Birmingham, March 25, 1873, 
 
 BT 
 
 SIR HENRY SUMNER MAINE, K.C.S.I., D.C.L, 
 
 Member of the t'ouucil of India and Corpus Professor of Jurisprudence in the 
 University of Oxford. 
 
 This Lecture, the substance of which forms part of an unpublished work, is reprinted for the 
 Married Women's Property Committee, with the permission of the authoi . 
 
 MANCHESTER : 
 a. IRELAND AND CO., PRINTERS, PALL JIALL,
 
 . UIUC
 
 LECTURE. 
 
 Ladies and Gentlemen, — The subject to wliicli I am about to ask 
 your attention, however briefly and superficially it may be treated, 
 may perhaps convey one lesson. It may serve as a caution against 
 the lax employment of the words " ancient " and " modern." 
 There are few persons, I suppose, who, approaching the Settled 
 Property of Married Women without previous knowledge of its 
 history, would not pronounce it one of the most modern of sub- 
 jects. It has given rise to vehement controversy in our own day ; 
 some of the questions which it suggests are not yet settled ; and 
 there are many here, I dare say, who believe that they remember 
 the first dawn of sound ideas on these questions. Yet, as a matter 
 of fact, the discussion of the settled property of married women is 
 one of the oldest of discussions. 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. This assertion, I 
 may observe, is less incredible to a Frenchman, or indeed to a 
 citizen of any Continental State, than it is possibly to an Englishman. 
 The law of the Continent on the proprietary relations of husband 
 and wife is in the main Koman law, very shghtly transmuted ; and 
 through the institutions of the Eomans the history of this branch 
 of law may be traced to the earliest institutions of so much of the 
 human race as has proved capable of civilisation.
 
 I have undertaken to illustrate my subject by the records of two 
 great systems of law — the Eoman and the Hindoo. These systems 
 are very far indeed from being the only soiu'ces from which informa- 
 tion can be gathered concerning the infancy of mankind, or even con- 
 cerning the Aryan race of men. But the evidence supplied by each 
 of them is highly authentic, and, whUe both of them run back to 
 what may faiiiy be called a vast antiquity, they both assume at 
 theu" starting point the existence of the institution, by no means 
 apparently universal among savage men, out of which, as I said, 
 all civihsation has grown — the Family. I need scarcely add that, 
 even for historical purposes, their value is very unequal. 
 
 There is no history so long, so continuous, and so authentic as 
 that of the Koman law ; and yet it is not a little remarkable that 
 tni about liaK-a-centiu-y ago it was systematically treated, except 
 by a small minority of jurists, as if it had no history at all. This 
 was a consequence of its great juridical perfection. Now, nothing 
 could be more out of place here than a panegyiic on the Eoman 
 law, seen from a lawyer's point of view. Let me, however, pause 
 to observe that, considering the time and pains which a good many 
 of us spend in acquiring the Latin language, it is much to be 
 regretted that so few of us knew anything of this branch of Latin 
 hterature. For it is really so ex^jressed, and so put together, as to 
 deserve the name of literature. Moreover, it was the only litera- 
 ture of the Eomans which has any claim to originahty ; it was the 
 only part of their literature in which the Komans themselves took 
 any strong interest ; and it is the one part which has profoundly 
 influenced modern thought. One result, however, of its symmetry 
 and lucidity was that it was long regarded as a bu'th of pure 
 intellect, produced, so to speak, at a single effort. Those who 
 attempted to construct a history for it were few, and not of the 
 highest credit. But it happened that, in 1816, the great German 
 historian, Niebuhr, travelling in Italy, had his attention attracted 
 at Verona to a manuscript of one of the Fathers, under the letters 
 of which ancient writing appeared. This manuscript, when de- 
 ciphered, proved to be a nearly perfect copy of an educational 
 work, written in the scond century of our era, for young Eoman 
 students of law, by one of the most famous of Eoman lawyers, 
 Gains or Gains. At that period Eoman jurisprudence retained 
 enough of the traces of its most ancient state for it to be necessary 
 that they should be explained to young readers by the author of
 
 such a treatise ; and it thus became possible to reconstruct, from 
 the book of Gaius, the whole past history of Roman law with some 
 completeness. Cei-tainly, without Niebuhr's discovery the subject 
 of this lecture could never have been understood, or its original 
 outline restored. 
 
 Hindoo law, which I have placed by the side of Eoman law, 
 calls assuredly for no eulogy. It is full of monstrous iniquities, 
 and has been perverted in all dh-ections by priestly influence. But 
 then a great deal of it is undoubtedly of prodigious antiquity, and, 
 what is more important, we can see this ancient law in operation 
 before our eyes. British legislation has corrected some of its ex- 
 cesses, but its principles are untouched, and are still left to produce 
 some of then- results. French law, as I said, is Eoman law a httle 
 altered, but then it is the Eoman law in its matured, developed, 
 and refined condition, and the ancient institutions of the Eomans 
 ai'e only seen through it dimly. But some of the institutions which 
 the Eomans and Hindoos once had in common may be seen actually 
 flourishing in India, under the protection of English Com-ts of 
 Justice. 
 
 The two societies, Eoman and Hindoo, which I take up for 
 examination, with the view of determining some of then- earhest 
 ideas concerning the property of women, are seen to be formed 
 at what, for practical pui-poses, is the earhest stage of then- history, 
 by the multipUcation of a particular unit or group, the Patriarchal 
 Family. There has been much sj)eculation of late among writers 
 belonging to the school of so-caUed pre-historic inquiry as to the 
 place in the history of human society to which tliis peculiar group, 
 the Patriarchal Family, is entitled. Whether, however, it has ex- 
 isted universally from all tune — whether it has existed from aU 
 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. The group consist of animate and 
 inanimate property, of wife, childi-en, slaves, land, and goods, aU 
 held together by subjection to the despotic authority of the eldest 
 male of the eldest ascending hne, 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 alto- 
 gether. All the larger groups which make up the primitive 
 societies in which the Patriarchal family occurs, are seen to be 
 mere multiphcations of it, and to be, in fact, themselves palpably 
 formed on its model. 
 
 But, when first we view the Patriarchal family through per- 
 fectly trustworthy evidence, it is already m 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 ; but their share appears, from several indica- 
 tions, to have been smaller, and they are stiU controlled, both in 
 the enjoyment of it and in the disposal. Here, however, we come 
 upon the first trace of a distinction which runs through all legal 
 history. Unmarried women, originally in no difl'erent 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 juris- 
 prudence, Legal Fictions and Equity. To those who are ahve to the 
 permanence of certain legal phenomena there is no more interest- 
 ing passage in ancient law than that in which the old lawyer Gains 
 describes the curious forms with which the guardian's powers were 
 transferred to a trustee, whose trust was to exercise them at the 
 pleasure of the ward. Meantime, there can be no reasonable doubt 
 that among the Eomans, who alone supply us with a continuous 
 history of this branch of jurisprudence, the great majority of women 
 became by marriage, as all women had originally become, the 
 daughters of their husbands. The family was based, not upon 
 actual relationship, but upon power, and the husband acquired 
 over his wife the same despotic power which the father had over 
 his children. There can be no question that, in strict pursuance 
 of this conception of marriage, aU the wife's property passed at first
 
 absolutely to the husband, and became fused with the domain of 
 the new family ; and at this point begins, in any reasonable sense 
 of the words, the early history of the property of married women. 
 
 The first sign of change is furnished by the employment of a 
 peculiar term to indicate the relation of husband to wife, as 
 different from the relation of father to child, or master to slave. 
 The term, a famous one in legal history, is manus, the Latin word 
 for "hand," and the wife was said convenire in manum, to come under 
 the hand of her husband. I have elsewhere expressed a con- 
 jectural opinion that this word, manus or hand, was at first the 
 sole general term for patriarchal power among the Komans, and 
 that it became confined to one form of that power by a process of 
 speciaUsation easily observable in the history of language. The 
 allotment of particular names to special ideas which gradually 
 disengage themselves from a general idea is apparently determined 
 by accident. We cannot give a reason, other than mere chance, 
 why power over a wife should have retained the name of manus, 
 why power over a child should have obtained another name, 
 potestas, why power over slaves and inanimate property should in 
 later times be called dominium. But, although the transformation 
 of meanings be capricious, the process of specialisation is a perman- 
 ent phenomenon, in the highest degree important and Avorthy of 
 observation. When once this specialisation has in any case been 
 effected, I venture to say that there can be no accurate historical 
 vision for him who will not, in mental contemplation, re-combine 
 the separated elements. 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 com- 
 bination of famihes, in a larger aggregate, for which at present I 
 have no better name than Village Community — we find it impos- 
 sible 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. There is no distinction drawn in the mind between 
 passing a law, affirming a rule, trying an offender, carrying out the 
 sentence, or prescribing a set of directions to a communal function- 
 ary. All these are regarded as exercises of an identical power
 
 lodged with some depositary or body of depositaries. When these 
 communities become blended in the larger groups which are con- 
 veniently called political, the re-combination of ideas originally 
 blended becomes infinitely more difficult, and, when successfully 
 effected, is among the greatest achievements of historical insight. 
 But I venture to say that, whether we look to that immortal system of 
 village communities which became the Greek or Hellenic world — 
 or to that famous group of village-communities on the Tiber, which, 
 grown into a legislating empire, has influenced the destinies of 
 mankind far more by altering their primitive customs than by con- 
 quering them — or to the marvellously complex societies to which 
 we belong, and in which the influence of the primitive family and 
 village notions still makes itself felt amid the mass of modern 
 thought — still I venture to say, that one great secret for under- 
 standing these collections of men, is the reconstruction in the mind 
 of ancient, general, and blended ideas by the re -combination of the 
 modern special ideas which are their offshoots. 
 
 The next stage in the legal history of Koman civil marriage is 
 marked by the contrivance, very famiUar to students of Eoman law, 
 by which the process of " coming under the hand" was dispensed 
 with, and the wife no longer became in law her husband's daughter. 
 From very early times it would appear to have been possible to 
 contract a legal marriage by merely establishing the existence of 
 conjugal society. But the effect on the wife of continuous conjugal 
 society was, in old Koman law, precisely the same as the effect on 
 a man of continuous servile occupation in a Roman household. 
 The institution called Usucapion, or (in modern times) Prescrip- 
 tion, the acquisition of ownership by continuous possession, lay 
 at the root of the ancient Eoman law, whether of persons or 
 of things; and, in the first case, the woman became the daughter 
 of the chief of the house ; in the last case the man became his slave. 
 The legal result was only not the same in the two cases because 
 the shades of power had now been discriminated, and paternal 
 authority had become different from the lordship of the master 
 over the slave. In order, however, that acquisition by Usucapion 
 might be consummated, the possession must be continuous; there 
 was no Usucapion where the possession had been interrupted — 
 where, to use the technical phrase (which has had rather a distin- 
 guished history), there had been usurpation, the breaking of usus 
 or enjoyment. It was possible, therefore, for the wife, by absent-
 
 9 
 
 ing herself for a definite period from her husband's domicile, to 
 protect herself from his acquisition of paternal power over her 
 person and property. The exact duration of the absence necessary 
 to defeat the Usucapion — tliree days and three nights — is pro- 
 vided for in the ancient Eoman Code, the Twelve Tables, and 
 doubtless the appearance of such a rule in so early a monument of 
 legislation is not a little remarkable. It is extremely likely, as 
 several writers on the ancient law conjectured, that the object of 
 the provision was to clear up a doubt, and to declare with certainty 
 what period of absence was necessary to legalise an existing prac- 
 tice. But it would never do to suppose that the practice was com- 
 mon, or rapidly became common. In this, as in several other 
 cases, it is probable that the want of qualification in the clause of 
 the Twelve Tables is to be explained by the reliance of the legis- 
 lature on custom, opinion, or religious feeling to prevent the abuse 
 of his legislation. The wife who saved herself from coming under 
 marital authority no doubt had the legal status of wife, but the Latin 
 antiquarians evidently beUeved that her position was not at first held 
 to be respectable. By the time of Gaius, however, any association 
 of imperfect respectabihty with the newer form of marriage, was 
 decaying or had perished ; and, in fact, we know that marriage 
 •' without coming under the hand," became the ordinary Eoman mar- 
 riage, and that the relation of husband and wife became a voluntary 
 conjugal society, terminable at the pleasure of either party by divorce. 
 It was with the state of conjugal relations thus produced that 
 the growing Christianity of the Eoman world waged a war ever 
 increasing in fierceness ; yet it remained to the last the basis of 
 the Eoman legal conception of marriage, and to a certain extent it 
 even colours the canon law, founded though it be, on the whole, on 
 the sacramental view of marriage. 
 
 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 setthng the property of married 
 women which has supplied the greatest part of Continental 
 Em-ope with its law of marriage settlement. It appears an 
 immediate consequence from thoroughly ascertained legal prin- 
 ciples that, as soon as the wife ceased to pass by marriage
 
 10 
 
 into her husband's family, and to become in law his daughter, her 
 property would no longer be transferred to him. In the earher 
 period of Roman law, this property, present and prospective, would 
 have remained with her own family, and, if she was no longer 
 under direct parental authority, would have been administered by 
 her guardians for the behoof of her male relatives. As we know, 
 however, and as I before stated, the power of guardians was 
 gradually reduced to a shadow. The legal result would seem to 
 have been that the woman would be placed in the same position as 
 a French wife at this day under what the French Code calls the 
 regime of Mens separes, or an Enghsh wife whose property has been 
 secured to her separate use by an appropriate man-iage settlement, 
 or by the operation of the new Married Women's Property Act. 
 But, though this was the legal consequence, it would be a social 
 anachi'onism to assume that in practice it followed rapidly or 
 generally. The original object of the marriage "without coming 
 under the hand " was doubtless to prevent the acquisition of exces- 
 sive jjroprietary power by the husband, not to deprive him of all 
 such power, and indeed the legal result of this marriage, unless 
 practically qualified in some way, would unquestionably have been 
 far in advance of social feeling. Here, then, we come upon an insti- 
 tution which, of all purely artificial institutions, has had perhaps 
 the longest and the most important history. This is the dos, or dotal 
 estate, something very difi'erent from our " dower." It has become 
 the dot of French law, and is the favourite form of settling the 
 property of married women aU over the Continent of Europe. It is 
 a contribution by the wife's family, or by the wife herself, intended 
 to assist the husband in bearing the expenses of the conjugal house- 
 hold. Only the revenue belonged to the husband, and many 
 minute rules, which need not be specified here, prevented him from 
 spending it on objects foreign to the purpose of the settlement. 
 The corpus or capital of the settled property was, among the 
 Romans (as now in France), incapable of alienation, unless with 
 the permission of a court of justice. If any part of the wife's pro- 
 perty was not settled on her as dos, it became her parapherna. Para- 
 pherna means something very different from our " paraphernaha," 
 and is the Mens separes of French law. It was that j)ortion of a 
 wife's property which was held by her under the strict law appHcable 
 to a woman marrying without " coming under the hand." The 
 authority of her guardians having died out, and this part of her
 
 11 
 
 property not having, by the assumption, been conveyed to the 
 husband as dos, it remained under her exclusive control, and at her 
 exclusive disposal. It is only quite recently, under the Married 
 Women's Property Act, that we have arrived at a similar institu- 
 tion, since money settled to a wife's separate use, though practically 
 the same thing, required a settlement to create it. 
 
 I have now abridged a very long, and, in some portions, a very 
 intricate history. The Roman law began by giving all the wife's 
 property to the husband, because she was assumed to be, in law, 
 his daughter. It ended in having for its general rule that aU the 
 wife's property was under her own control, save when a part of it 
 had been converted by settlement into a fund for contributing to 
 the expenses of the conjugal household. But, no doubt, the excep- 
 tion to the general rule was the ordinary practice. In all respec- 
 table households, as now on the Continent, there was a settlement 
 by way of dos. Not that we are to suppose there was among the 
 Eomans any such form of contract as we are accustomed to under 
 the name of marriage settlement. The mechanism was infinitely 
 simpler. A few words on paper would suffice to bring any part of 
 the wife's property under the well-ascertained rules supplied by 
 the written law for dotal settlements, and nothing more than these 
 words would be needed, unless the persons marrying wished to 
 vary the provisions of the law by express agreement. This simple, 
 but most admirable, contrivance of having, so to speak, model 
 settlements set forth ready made in the law, which may be adopted 
 or not at pleasure, characterises the French Code Napoleon, and it 
 was inherited by the French from the Eomans. 
 
 Warning you that the account which I have given you of the 
 transitions through which the Roman law of settled property passed, 
 is, from the necessity of the case, fragmentary, and to some extent 
 superficial, I pass to the evidence of early ideas on our subject 
 which is contained in the Hindoo law. The settled property of a 
 married woman, incapable of ahenation by her husband, is well- 
 known to the Hindoos under the name of Stridhan. It is certainly 
 a remarkable fact that the institution seems to have been develoj^ed 
 among the Hindoos at a period relatively much earlier than among 
 the Romans. But instead of being matured and improved, as it 
 was in the Western society, there is reason to think that in the 
 East, under various influences which may partly be traced, it has 
 gradually been reduced to dimensions and importance far inferior 
 to those which originally belonged to it.
 
 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 proi^erty 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 mjiihical 
 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 vener- 
 able antiquity. Nevertheless, it must be admitted that there are 
 some difficulties in receiving it. The existing Hindoo wi'itten law, 
 which is a mixed body of religious, moral, and legal ordinances, is 
 pre-eminently distinguished by the strictness with which it main- 
 tains a number of obhgations, plainly traceable to the ancient 
 despotism of the family, and by its excessive harshness to the per- 
 sonal and proprietary hberty of women. Among the Aryan sub- 
 races, the Hindoos may be as confidently asserted as the Eomans 
 to have had theii* primitive society organised as a collection of 
 patriarchally-governed famiHes. 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 um-avel, 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 hable to one special misai^prehension. 
 He is in danger of taking as a rule what the ancient legislator 
 intended as an exception. A dispute having arisen as to the 
 legaHty of an unusual and occasional practice, the legislator thinks 
 fit to declare it legal, trusting all the while, consciously or uncon- 
 sciously, 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 Eoman Twelve Tables which we know to have 
 been subsequently modified by legislation or juridical interpreta- 
 tion, 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 reaUy, 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
 
 18 
 
 religion, to limit the privileges of women which they seem to have 
 found recognised by older authorities. 
 
 The attention of English and European students of the Hindoo 
 law books was first attracted to this subject by a natural desire to 
 scrutinise the sacred texts upon which the Brahmin learned were 
 in the habit of insisting in defence of the abominable practice of 
 Suttee or widow-burning. The discovery was soon made that the 
 oldest monuments of law and religion gave no countenance to the 
 rite, and the conclusion was at once drawn that, even on Hindoo 
 principles, it was an unlawful innovation. This mode of reasoning 
 undoubtedly gave comfort to many devout Hindoos, whom no 
 secular argument could have reconciled to the abandonment of a 
 custom of proved antiquity ; but still, in itself it was unsound. 
 The disuse of all practices which a scholar could show to be re- 
 latively modern would dissolve the whole Hindoo system. These 
 inquu'ies, pushed much further, have shown that the Hindoo laws, 
 religious and civil, have for centuries been undergoing transmuta- 
 tion, 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. It is extremely likely, 
 then, that what the Eomans would call the dos was at one time a 
 much more important institution among the Hindoos than it is now, 
 and, indeed, that the married woman's authority over it was a 
 great deal more extensive than was that of a Koman wife. 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. 
 But that women should have become partially enfi-anchised, 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 com- 
 plete explanation of it, and the best account that can be given does 
 not, perhaps, amount to more than a plausible conjecture. Still we 
 are not wholly unable to assign reasons why it was that the Hindoo
 
 14 
 
 law, after apparently advancing further than what may be called 
 the Middle Roman law in the proprietary enfranchisement of women, 
 retreated afterwards to a point which is only represented in the 
 oldest institutions of Rome, and the general interest of the subject 
 is sufficiently great to warrant me in stating what those reasons are. 
 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 obey- 
 ing for many centuries. 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. 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 his- 
 torically and philosophically valueless, as indeed are all propo- 
 sitions 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. 
 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. 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. Yet there is abundant evidence 
 that the emancipation of the individual from the family had pro- 
 ceeded some way, even before the country had come under the 
 Western influences through the British dominion. If I were to 
 give you the full proof of this, I should have to take you through 
 much of the detail of Hindoo law. I will mention one indication
 
 15 
 
 of it, because few are aware that the peculiarity in question serves 
 as a sort of test by which we can distinguish very ancient or unde- 
 veloped from comparatively matured and developed law. 
 
 All beginners in law have heard of the difference between dis- 
 tributing an inheritance x>er stirpes and distributing it 2^^>' 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. If the division is per capita the property will be 
 equally divided between the whole ten grandchildi-en, share and 
 share alike. Now the tendency of matured and developed law is 
 to give a decided preference to distribution 2)er stirpes ; it is only 
 with remote classes of relatives that it abandons the distinctions 
 between the stocks and distributes the property per capita. 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 sur- 
 viving members of the family ; and this is apparently on the 
 principle that, all having been impartially subject to a despotism 
 which knew no degrees, aU ought to share equally on the dissolu- 
 tion of the community by the death of its chief. 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 under- 
 gone 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. 
 
 Let us now turn to the causes which in the Hindoo law, and in 
 the great alternative Aryan system, the Eoman law, have respec- 
 tively led to the disengagement of the individual from the group. 
 So far as regards the Eoman institutions, we know that among the 
 most powerful solvent influences were certain philosophical theories, 
 of Greek origin, which had deep effect on the minds of the jurists, 
 who guided the development of the law. The law, thus transformed 
 by a doctrine which had its most distinct expression in the famous
 
 16 
 
 proposition, ** all men are equal," was spread over much of the 
 world by Roman legislation. The empire of the Romans, for one 
 reason alone, must be placed in a totally different class from the 
 Oriental despotisms, ancient and modern, and even from the 
 famous Athenian Emjiire. AU these last were tax-taking empires, 
 which exercised little or no interference in the customs of village 
 communities or tribes. But the Roman Empire, while it was a 
 tax-taking, was also a legislating empire. It crushed out local 
 customs, and substituted institutions of its own. Through its legis- 
 lation alone it effected so great an interruption in the history of a 
 large part of mankind, nor has it had any parallel except — and 
 the comparison is very imperfect — the modern British Empire in 
 India. There is no reason to suppose that philosophical theory 
 had any serious influence on the jurisprudence of the Hindoos. I 
 speak with reserve on the subject, but I beHeve that none of the 
 remarkable philosophical theories which the genius of the race pro- 
 duced are founded on a conception of the individual as distinct 
 from that of the group in which he is born. From those of them 
 with which I happen to be acquainted, I should say that their 
 characteristics are of exactly the reverse order, and that they have 
 their nearest counterpart in certain philosophical systems of our 
 own day, under which the individual seems lost in some such con- 
 ception as that of Humanity. What, then, was the influence (for 
 some influence there certainly was) which, operating on the minds 
 of the Brahminical jurists, led them to assign to the indi^■idual 
 rights distinct from those which would have belonged to him 
 through mere membership in the family group ? I conceive that 
 it was the influence of religion. Wherever among any part of 
 Hindoo society there prevailed the conviction of responsibihty 
 after death — whether that responsibility was to be enforced by 
 direct rewards and punishments, or through the stages of the 
 metempsychosis — the conception of the individual, who was to 
 suffer separately and enjoy separately, was necessarily reahsed 
 with extreme distinctness. 
 
 The portions of the race strongly affected by reHgious beHef of 
 this kind were exactly those for which the Brahminical jurists 
 legislated, and at first they probably legislated for these alone. 
 But with the notion of responsibihty after death the notion of 
 expiation was always associated. Building upon this last notion, 
 the Brahminical commentators gradually transformed the whole
 
 17 
 
 law until it became an exemplification of what Indian lawyers call 
 the doctrine of spii-itual benefit. 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 
 ^vriters 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. The law con- 
 structed on these principles became extremely unfavourable to the 
 ownership of property by women, apparently because its jjriestly 
 authors thought that women would have much greater diificulty 
 than men in applying a proper share of the property to the funeral 
 ceremonies of the person who had transmitted it. Their physical 
 weakness and their seclusion (which was doubtless considered to 
 be unavoidable) were probably regarded, among a society always 
 more or less disturbed, as disquahfying them much more than any 
 natural incapacity for sacerdotal functions. 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. 
 
 There is, accordingly, much reason to believe that the text — 
 which, as I told you, one of the most authoritative of the Hindoo 
 legal treatises attributes to the mythical, semi-divine legislator, 
 Manu — describes a condition of the law very like that which in 
 very ancient times prevailed in India. " Stridhan" says the rule, 
 or woman's property, includes " all the property which a woman 
 may have acquired by inheritance, pui-chase, partition, seizure, or 
 finding," and this is a comprehensive description of all the forms 
 of property as defined by the modes of acquisition. Nothing, 
 however, in the existing Hindoo law gives this amphtude, or 
 anything like it, to the Stridhan. The successive generations of 
 Hindoo commentators have shown their hostility to it, not by 
 aboUshing it, but by limiting to the utmost of their power the 
 circumstances under which it can arise. Minute distinctions are 
 di-awn 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
 
 18 
 
 place under the control of the husbantl as much as they could of 
 whatever came to the wife by inheritance or gift ; but whenever 
 the property does satisfy the multifarious conditions laid down for 
 the creation of the Stridhan, the view of it as emphatically woman's 
 property is carried out with a logical consistency very suggestive of 
 the character of the ancient institution on which the Brahminical 
 priests made war. Not only has the woman singidaidy 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, where- 
 ever it is possible, to female relatives over males. 
 
 Let me add that the account which I have given you of the pro- 
 bable hberality of the Hindoo institutions to females at some long- 
 past period of then- development, and of the dislike towards this 
 liberality manifested by the Brahminical lawyers, is not to be 
 regarded as fanciful or pui-ely conjectiu-al, although, doubtless, we 
 can only guess at the explanation of it. It is borne out by a very 
 considerable number of indications, one of which I mention as of 
 great but very painful interest. 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 
 childi-en, they succeed at once ; but if there are none, the widow 
 comes in for her life before the collateral relatives. At the present 
 moment, marriages among the upper classes of Hindoos being very 
 commonly infertile, a very considerable portion of the soil of the 
 wealthiest Indian province is in the hands of childless widows as 
 tenants for life. But it was exactly in Bengal Proper that the 
 Enghsh, on entering India, found the suttee, or widow-burning, 
 not merely an occasional, but a constant and almost universal 
 practice with the wealthier classes, and, as a 'rule, it was only 
 the childless widow, and never the widow with minor children, who 
 burnt herself on her husband's funeral pyre. There is no question 
 that there was the closest connection between the law and the 
 rehgious custom, and the widow was made to sacrifice herself in 
 order that her tenancy for life might be got out of the way. The 
 anxiety of her fandly that the rite should be performed, which 
 seemed so striking to the first Enghsh observers of the practice,
 
 19 
 
 was, in fact, explained by the coarsest motives ; but the Brahmins 
 who exhorted her to the sacrifice were undoubtedly influenced by 
 a purely professional dislike to her enjoyment of property. The 
 ancient rule of the civil law, which made her tenant for life, could 
 not be got rid of, but it was combated by the modern institution 
 which made it her duty to devote herself to a frightful death. 
 
 If the Stridhan of the Hindoos is a form of married women's 
 separate property, which has been disliked and perverted by the 
 professional classes who had the power to modify it, the institution 
 which was first the dos of the Eomans, and is now the dot of 
 Continental Europe, has received a singular amount of artificial 
 encouragement. I have endeavoured to describe to you how it 
 originated, but I have yet to state that it entered into one of the 
 most famous social experiments of the Eoman Empu-e. A well- 
 known statute of the Emperor Augustus, celebrated by Horace in 
 an official ode as the i^rince's greatest legislative achievement, had 
 for its object the encouragement and regulation of marriage and 
 the imposition of penalties on celibacy. Among the chief i^rovisions 
 of this " Lex Juha et Papia Poppoea " — to give its full title — was a 
 clause compelhng opulent parents to create portions, or dotes, for 
 their marriageable daughters. This provision of a statute, which 
 very deeply affected the Eoman law in many ways, must have met 
 with general approval, for at a later date we find the same principle 
 appHed to the donatio propter niiptias, or settlement on the married 
 couple from the husband's side. In the matured Eoman law, 
 therefore, regular as it may seem to us, parents were under a 
 statutory obhgation to make settlements on their childi-en. 
 
 It has been rather the fashion to speak of these experiments of 
 the Eoman Emperors on public morality as if they totally mis- 
 carried — I suppose, from some idea that the failure added to the 
 credit of the moral regeneration effected by Christianity. But, as 
 a matter of fact, the Christian Church conferred few civil benefits 
 of greater moment to several generations of mankind than in 
 keeping ahve the traditions of the Eoman legislation respecting 
 settled property, and in strenuously exerting itself to extend and 
 apply the principles of these disciplinary laws. There can be no 
 serious (j^uestion that in its ultimate result, the disruption of the 
 Eoman Empire was very unfavourable to the personal and pro- 
 prietary liberty of women. I purposely say, " in its idtimate 
 result," in order to avoid a learned controversy as to then- j)osition
 
 20 
 
 under purely Teutonic customs. It is very possible that the last 
 stages of the process, which it is difficult to call anj-thing hut 
 feudalisation, were more unfavourable to women than the earlier 
 changes, which were exclusively due to the infusion of Germanic 
 usage ; but, at any rate, the place of women under the new system 
 when fully organised was worse than it was under Roman law, and 
 would have been very greatly worse but for the efforts of the Church. 
 One standing monument of these efforts we have constantly before 
 us in the promise of the husband in the Marriage ser\-ice, " With 
 all my worldly goods, I thee endow;" a formula which sometimes 
 puzzles the Enghsh lawyer, from its want of correspondence 
 with anything which he finds among the oldest rules of Enghsh 
 law. The words have, indeed, been occasionally used in Enghsh 
 legal treatises, as the text of a disquisition on the distinction 
 between Eoman dos, to which they are supposed to refer, and 
 the doarium, which is the " dower " of lands known to Enghsh 
 law. The fact is, however, that the tradition which the Church 
 was carrying on was the general tradition of the Eoman dos, the 
 practical object being to secm-e for the wife a provision of which 
 the husband could not wantonly deprive her, and which would 
 remain to her after his death. The bodies of customary law which 
 were built up over Europe were, in all matters of first principle, 
 under ecclesiastical influences ; but the particular apphcations of 
 a principle once accepted were extremely various. The dower of 
 lands in Enghsh law, of which hardly a shadow remains, but under 
 which a wife survi^•ing her husband took a tlurd of the rents and 
 profits of his estates for life, belonged to a class of institutions 
 widely spread over Western Europe, very similar in general char- 
 acter, often designated as doarium, but differing considerably in 
 detail. They unquestionably had then- origin in the endeavours of 
 the Church to revive the Eoman institution of the compulsory dos, 
 which, in this sense, produced the doarium, even though the latter 
 may have had a partially Germanic origin, and even though it 
 occasionally assume (as it unquestionably does) a shape very 
 different from the original institution. I myself beheve that 
 another effect of this persistent preaching and encouragement is to 
 be found in the strong feeling which is diffused through much of 
 Europe, and specially through the Latinised societies, in favour of 
 dotation, or portioning of daughters, a feeling which seldom faUs to 
 astonish a person acquainted with such a country as France by its
 
 21 
 
 remarkable intensity. It is au economical power of considerable 
 importance, for it is the principal source of those habits of saving 
 and hoarding which characterise the French people, and I regard 
 it as descended, by a long chain of succession, from the obligatory 
 provisions of the marriage law of the Emperor Augustus. 
 
 The importance and interest of our subject, when treated in all 
 its bearings and throughout its whole history, are quite enough to 
 excuse me, I trust, for having detained you with an account of its 
 obscure beginnings. 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 quaUfications which are necessary to give it value, it is very far 
 indeed from being a mere gallant commonplace. 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 measm-e 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. 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 civili- 
 sation, is the result of curbing some one of the strongest, because 
 the primary, impulses of human nature. If we were asked why 
 the two societies with which we have been concerned this evening 
 — the Hindoos on the one hand, and the Eomans and all the races 
 to which they have bequeathed then* institutions on the other — 
 have had so widely different a history, no reply can be very con- 
 fidently given, so difficult is it, among the vast variety of in- 
 fluences 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. Yet, if it were absolutely 
 necessary to give an answer, it would consist in pointing to the 
 difference in then* social history Avliich has been the subject of this 
 lecture, and in observing that one steadily carried forward, while 
 the other recoiled from, the series of changes which put an end to 
 the seclusion and degradation of an entire sex.
 
 A. IRELAND AND CO., PRINTERS, MANCHESTER.
 
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