There are many vestiges of a struggle between the secular andecclesiastical principles, but the Canon Law nearly everywhereprevailed. In some of the French provinces married women, of arank below nobility, obtained all the powers of dealing withproperty which Roman jurisprudence had allowed, and this locallaw has been largely followed by the Code Napoleon; but the stateof the Scottish law shows that scrupulous deference to thedoctrines of the Roman jurisconsults did not always extend tomitigating the disabilities of wives. The systems however whichare least indulgent to married women are invariably those whichhave followed the Canon Law exclusively, or those which, from thelateness of their contact with European civilisation, have neverhad their archaisms weeded out. The Scandinavian laws, harsh tilllately to all females, are still remarkable for their severity towives. And scarcely less stringent in the proprietaryincapacities it imposes is the English Common Law, which borrowsfar the greatest number of its fundamental principles from thejurisprudence of the Canonists. Indeed, the part of the CommonLaw which prescribes the legal situation of married women mayserve to give an Englishman clear notions of the greatinstitution which has been the principal subject of this chapter.
I do not know how the operation and nature of the ancient PatriaPotestas can be brought so vividly before the mind as byreflecting on the prerogatives attached to the husband by thepure English Common Law, and by recalling the rigorousconsistency with which the view of a complete legal subjection onthe part of the wife is carried by it, where it is untouched byequity or statutes, through every department of rights, duties,and remedies. The distance between the eldest and latest Romanlaw on the subject of Children under Power may be considered asequivalent to the difference between the Common Law and thejurisprudence of the Court of Chancery in the rules which theyrespectively apply to wives.
If we were to lose sight of the true origin of Guardianshipin both its forms and were to employ the common language on thesetopics, we should find ourselves remarking that, while theTutelage of Women is an instance in which systems of archaic lawpush to an extravagant length the fiction of suspended rights,the rules which they lay down for the Guardianship of MaleOrphans are an example of a fault in precisely the oppositedirection. All such systems terminate the Tutelage of males at anextraordinary early period. Under the ancient Roman law which maybe taken as their type, the son who was delivered from PatriaPotestas by the death of his Father or Grandfather remained underguardianship till an epoch which for general purposes may bedescribed as arriving with his fifteenth year,. but the arrivalof that epoch placed him at once in the full enjoyment ofpersonal and proprietary independence. The period of minorityappears therefore to have been as unreasonably short as theduration of the disabilities of women was preposterously long.
But, in point of fact, there was no element either of excess orof shortcoming in the circumstances which gave their originalform to the two kinds of guardianship. Neither the one nor theother of them was based on the slightest consideration of publicor private convenience. The guardianship of male orphans was nomore desired originally to shield them till the arrival of yearsof discretion than the tutelage of women was intended to protectthe other *** against its own feebleness. The reason why thedeath of the father delivered the son from the bondage of thefamily was the son's capacity for becoming himself the head of anew family and the founder of a new Patria Potestas; no suchcapacity was possessed by the woman and therefore she was neverenfranchised. Accordingly the Guardianship of Male Orphans was acontrivance for keeping alive the semblance of subordination tothe family of the Parent, up to the time when the child wassupposed capable of becoming a parent himself. It was aprolongation of the Patria Potestas up to the period of barephysical manhood. It ended with puberty, for the rigour of thetheory demanded that it should do so. Inasmuch, however, as itdid not profess to conduct the orphan ward to the age ofintellectual maturity or fitness for affairs, it was quiteunequal to the purposes of general convenience; and this theRomans seem to have discovered at a very early stage of theirsocial progress. One of the very oldest monuments of Romanlegislation is the Lex Laetoria or Plaetoria which placed allfree males who were of full years and rights under the temporarycontrol of a new class of guardians, called Curatores, whosesanction was required to validate their acts or contracts. Thetwenty-sixth year of the young man's age was the limit of thisstatutory supervision; and it is exclusively with reference tothe age of twenty-five that the terms "majority" and "minority"are employed in Roman law. Pupilage or wardship in modernjurisprudence had adjusted itself with tolerable regularity tothe ****** principle of protection to the immaturity of youthboth bodily and mental. It has its natural termination with yearsof discretion. But for protection against physical weakness andfor protection against intellectual incapacity, the Romans lookedto two different institutions, distinct both in theory anddesign. The ideas attendant on both are combined in the modernidea of guardianship.
