Chapter 59

99Medhurst, ‘Marriage, Affinity, and Inheritance in China,’ inTrans. Roy. Asiatic Soc. China Branch, iv. 11.

100Ta Tsing Leu Lee, sec. cccxxxviii. p. 374.

101Ibid.sec. cccxxxvii. p. 371sq.

102Wells Williams,Middle Kingdom, i. 646.

103Griffis,Corea, p. 328sq.

104Hsiáo King, 1, 7, 9 (Sacred Books of the East, iii. 446, 473, 476).

105Douglas,Confucianism and Taouism, p. 118.

106Griffis,Corea, pp. 236, 259.

107Rein,Japan, p. 427. Griffis,Religions of Japan, p. 122sq.

108Griffis,Religions of Japan, p. 148.

109Idem,Mikado’s Empire, p. 555.Cf.Rein,Japan, p. 427.

110Griffis,Corea, p. 259.

It is the general opinion of Assyriologists that in ancient Chaldæa, at least in the early period of its history, the father had absolute authority over all the members of his household.111Anything undertaken by them without his consent was held invalid in the eyes of the law,112and a disobedient son might be sold as a slave.113According to the Laws of Ḫammurabi, a man might give his son or daughter as a hostage for debts;114but he could not disown his children at discretion. It is said that if he wishes to cut off his son he must declare his intention to the judge, whereupon “the judge shall enquire into his reasons, and if the son has not committed a heavy crime which cuts off from sonship, the father shall not cut off his son from sonship.”115Professor Hommel believes that the mother’s authority over her children was as great as the father’s,116whereas Meissner concludes that it was less, from the fact that her children are not seldom found to be at law with her in matters of succession.117Among the Hebrews a father might sell his child to relieve his own distress, or offer it to a creditor as a pledge.118He had not only unlimited power to marry his daughters, but even to sell them as maids into concubinage, though not to a foreign people.119He also chose wives for his sons;120and there is no indication that the subjection of sons ceased after a certain age.121How important were the duties of the child to theparents is shown in the primitive typical relation of Isaac to Abraham, and may be at once learned from the placing of the law on the subject among the Ten Commandments, and from its position there in the immediate proximity to the commands relating to the duties of man towards God.122Philo Judæus observes that it occupies this position because parents are something between divine and human nature, partaking of both—of human nature inasmuch as it is plain that they have been born and that they will die, and of divine nature because they have engendered other beings, and have brought what did not exist into existence. What God is to the world, that parents are to their children; they are “the visible gods.”123In Muhammedan countries parents have practically great authority over their children. Should a father exceed the bounds of moderation or justice in chastising his son, the idea of prosecuting him would hardly occur to anyone, the injured party being prevented by public opinion, if not by habit and feeling, from appealing against his own father.124Disobedience to parents is considered by Moslems as one of the greatest of sins, and is put, in point of heinousness, on a par with idolatry, murder, and desertion in an expedition against infidels. “An undutiful child,” says Mr. Lane, “is very seldom heard of among the Egyptians or the Arabs in general…. Sons scarcely sit or eat or smoke in the presence of the father, unless bidden to do so.”125In Morocco it is curious to see big, grown-up sons sneak away as soon as they hear their father’s steps, or to notice their absolute reticence in his presence. Children’s deference for their mothers is less formal, but almost equally great.126

111Oppert, inGöttingische gelehrte Anzeigen, 1879, p. 1604sqq.Hommel,Die semitischen Völker und Sprachen, i. 416. Meissner,Beiträge zum altbabylonischen Privatrecht, p. 14sq.

112Maspero,Dawn of Civilization, p. 134.

113Hommel,op. cit.i. 416. Meissner,op. cit.p. 1.

114Laws of Ḫammurabi, 117.

115Ibid.168.

116Hommel,op. cit.i. 416.

117Meissner,op. cit.p. 15.

118Ewald,Antiquities of Israel, p. 190. Wellhausen,Prolegomena to the History of Israel, p. 465.

119Exodus, xxi. 7sq.

120Genesis, xxiv. 4; xxviii. 1sq.Exodus, xxxiv. 16.Deuteronomy, vii, 3.

121Cf.Michaelis,Commentaries on the Laws of Moses, i. 444.

122Cf.Ewald,op. cit.p. 188; Gans,Das Erbrecht in weltgeschichtlicher Entwickelung, i. 134.

123Philo Judæus,Opera, i. 759sqq.

124Urquhart,Spirit of the East, ii. 440sq.

125Lane,Manners and Customs of the Modern Egyptians, p. 70.Cf.Pool,Studies in Mohammedanism, p. 171.

126Cf.Urquhart,op. cit.ii. 265sq.

Among the ancient Romans, in relation to the house-father, “all in the household were destitute of legal rights—the wife and the child no less than the bullock or theslave.”127The father not only had judicial authority over his children—implying the right of inflicting capital punishment on them128—but he could sell them at discretion.129Even the grown-up son and his children were subject to the house-father’s authority,130and in marriage withoutconventio in manuma daughter remained in the power of her father or tutor even after marriage.131Filial piety, including reverence not only for the father but for the mother also, was regarded as a most sacred duty.132To the ancient Roman the parents were hardly less sacred beings than the gods.133

127Mommsen,History of Rome, i. 74.

128Supra,p. 393.

129Dionysius of Halicarnassus,Antiquitates Romanæ, ii. 27.

130Institutiones, i. 9. 3.

131Westermarck,op. cit.p. 230.

132Leist,Græco-italische Rechtsgeschichte, p. 11sqq.Idem,Alt-arisches Jus Gentium, p. 185.

133Valerius Maximus, i. 1. 13: “Pari vindicta parentum ac deorum violatio expianda est.” Servius,In Virgilii Georgicon, ii. 473: “Sacra deorum sancta apud illos sunt, sancti etiam parentes.”

It has been suggested by Sir Henry Maine and others that thepatria potestasof the Romans was a survival of the paternal authority which existed among the primitive Aryans.134But no clear evidence of the general prevalence of such unlimited authority among other so-called Aryan peoples has been adduced. The ancient jurist observed, “The power which we have over our children is peculiar to Roman citizens; for there are no other nations possessing the same power over their children as we have over ours.”135That among the Greeks and Teutons the father had the right to expose his children in their infancy, to sell them, in case of urgency, as long as they remained in his power,136and to give away his daughters in marriage,137does not imply the possession of a sovereignty like that which the Roman house-father exercised over his descendants of all ages. In Greece138and among all the Teutonicnations139the father’s authority over his sons came to an end when the son grew up and left his home. But here again we must distinguish between the legal rights of parents and the duties of children. There are numerous passages in the Greek writings which put filial piety on a par with the duties towards the gods.140

134Maine,Ancient Law, p. 138. Fustel de Coulanges,La cité antique, p. 96sqq.Hearn,Aryan Household, p. 92.

135Institutiones, i. 9. 2.

136Leist,Græco-italische Rechtsgeschichte, p. 60sq.Grimm,Deutsche Rechtsalterthümer, p. 461sq.Brunner,Deutsche Rechtsgeschichte, i. 76. In France the parents’ right of selling their children gradually disappeared under the kings of the third race (de Laurière, in Loysel,Institutes coutumières, i. 82).

137Westermarck,op. cit.p. 232sqq.

138Leist,Græco-italische Rechtsgeschichte, p. 62sq.Cauvet, ‘De l’organisation de la famille à Athènes,’ inRevue de législation, xxiv. 138.

139Grimm,Deutsche Rechtsalterthümer, p. 462. Brunner,Deutsche Rechtsgeschichte, i. 75sq.

140Schmidt,Ethik der alten Griechen, ii. 141sq.

Nor is there any evidence that thepatria potestasof the Roman type ever prevailed in full in India, great though the father’s or parent’s authority has been, and still is, among the Hindus.141Among the Vedic people the father seems to have been the head of the family only as long as he was able to be its protector and maintainer,142decrepit parents being even allowed to die of starvation.143According to some sacred books from a later age, the father and the mother have power to give, to sell, and to abandon their son, because “man formed of uterine blood and virile seed proceeds from his mother and his father as an effect from its cause”; however, an only son may not be given or received in adoption, nor is a woman allowed to give or receive a son except with her husband’s permission.144In other books it is said that “the gift or acceptance of a child and the right to sell or buy a child are not recognised,”145and that he who casts off his son—unless the son be guilty of a crime causing loss of caste—shall be fined by the king six hundredpanas.146But whatever be the legal rights of a parent, filial piety is a most stringent duty in the child.147A man has three Atigurus, or specially venerable superiors: his father, mother, and spiritual teacher. To them he must always pay obedience. He must do what is agreeable and serviceable to them. He must never do anything without their leave.148“By honouring these three all that ought to be done by man is accomplished;that is clearly the highest duty, every other act is a subordinate duty.”149Similar feelings prevail among the modern Hindus.150Sir W. H. Sleeman observes, “There is no part of the world, I believe, where parents are so much reverenced by their sons as they are in India in all classes of society.” The duty of daughters is from the day of their marriage transferred entirely to their husbands and their husbands’ parents, but between the son and his parents the reciprocity of rights and duties which have bound together the parent and child from infancy follows them to the grave. The sons are often actually tyrannised over by their mothers.151

141Westermarck,op. cit.p. 231sq.

142Rig-Veda, i. 70. 5.

143Zimmer,Altindisches Leben, p. 328.

144Vasishtha, xv. 1sqq.Baudhâyana Parisishta, vii. 5. 2sqq.

145Âpastamba, ii. 6. 13. 11.

146Laws of Manu, viii. 389.Cf.ibid.xi. 60.

147Âpastamba, i. 4. 14. 6.Laws of Manu, ii. 225sqq.; iv. 162; &c.

148Institutes of Vishnu, ch. 31.

149Laws of Manu, ii. 237.

150Nelson,View of the Hindū Law, p. 56sq.Ghani, ‘Social Life and Morality in India,’ inInternational Journal of Ethics, vii. 312.

151Sleeman,Rambles and Recollections of an Indian Official, i. 330sqq.

According to ancient Russian laws, fathers had great power over their children;152but it is not probable that a son could be sold as a slave.153Baron von Haxthausen, who wrote before the Emancipation in 1861, says that “the patriarchal government, feelings, and organisation are in full activity in the life, manners, and customs of the Great Russians. The same unlimited authority which the father exercises over all his children is possessed by the mother over her daughters.”154It was a common custom for a father to marry his young sons to full-grown women; and in Poland also, according to Nestor, a father used to select a bride for his son.155According to Professor Bogišić, the power of the father is not so great among the Southern Slavs as among the Russians;156but a son is not permitted to make a proposal of marriage to a girl against the will of his parents, whilst a daughter, of course, enjoys still less freedom of disposing of her own hand.157According to a Slavonian maxim, “a father is like an earthly god to his son.“158

152Accurse, quoted by de Laurière, in Loysel,op. cit.i. 82.

153Macieiowski,Slavische Rechtsgeschichte, iv. 404.

154von Haxthausen,Russian Empire, ii. 229sq.

155Westermarck,op. cit.p. 234. Macieiowski,op. cit.ii. 189.

156Maine,Early Law and Custom, p. 244, note.

157Krauss,Sitte und Brauch der Südslaven, pp. 314, 320.

158Maine,Early Law and Custom, p. 243.

Among this group of peoples, also, we meet with reverence for the elder brother, for persons of a superior age generally, and, especially, for the aged.

Obedience on the part of the younger to the elder brother is strongly inculcated by Confucianism and Taouism.159In ancient China the eldest son of the principal wife held so high a position that even his own father had to mourn for him at his death in the selfsame degree in which the son was bound to mourn for his father;160and in some provinces of Japan the elder brother or sister did not even go to the funeral of the younger.161In Babylonia the elder brother occupied a privileged position in the family in relation to the younger.162In one of the Mandæan writings it is said, “Honour your father and your mother and your elder brother as your father.”163According to the sacred books of the Hindus, “the feet of elder brothers and sisters must be embraced, according to the order of their seniority”;164“towards a sister of one’s father and of one’s mother, and towards one’s own elder sister, one must behave as towards one’s mother,” though the mother is more venerable than they.165

159Douglas,Confucianism and Taouism, pp. 123, 124, 259. Griffis,Religions of Japan, p. 125sq.

160de Groot,op. cit.(vol. ii. book) i. 509.

161Griffis,Religions of Japan, p. 127.

162Hommel,op. cit.i. 417sq.

163Brandt,Mandäische Schriften, p. 64.

164Âpastamba, i. 4. 14. 9.Cf.ibid.i. 4. 14. 14;Laws of Manu, ii. 225.

165Laws of Manu, ii. 133.

Again, in ancient Mexico respect was paid not only by children to their parents but by the young to the old.166Among the Yucatans “the young reverenced much the aged.”167In China persons of the lowest class who have attained to an unusual age have not infrequently been distinguished by the Emperor,168and even criminals with grey hairs are treated with regard.169“Respect for elders,” says Mencius, “is the working of righteousness”;170and it is said in Thâi Shang that the good man “will respect the old and cherish the young.”171A Japanese proverb runs, “Regard an old man as thy father.”172We read in Leviticus, “Thou shalt rise up before the hoary head, and honour the face of the old man, and fear thy God.”173Venerationfor the aged is emphatically inculcated by Islam.174In the sacred books of India it is represented as a virtue.175Herodotus states that the Egyptians resembled the Lacedæmonians in the reverence the young men paid to their elders.176Plato says in his ‘Laws’ that everybody ought to consider that the elder has the precedence of the younger in honour, both among the gods as also among men who would live in security and happiness; wherefore it is a foolish thing and hateful to the gods to see an elder man assaulted by a younger in the city. Everybody ought to regard a person who is twenty years older than himself, whether male or female, as his father or mother, and to abstain from laying hands on any such person “out of reverence to the gods who preside over birth.”177Regard for old age lies behind such words aspresbyterand the Anglo-Saxonealdormonn; and all travellers among the Southern Slavs have noticed their extraordinary respect for old people.178

166Clavigero,op. cit.i. 8l.Cf.ibid.i. 332.

167Landa,Relacion de las cosas de Yucatan, p. 178.

168Davis,China, ii. 97.

169Wells Williams,Middle Empire, i. 805.

170Mencius, vii. 1. 15. 3.

171Thâi Shang, 3.

172Griffis,Mikado’s Empire, p. 505.

173Leviticus, xix. 32.Cf.Job, xxxii. 1;Proverbs, xvi. 31, and xx. 29.

174Ameer Ali,Ethics of Islâm, p. 27sq.

175Âpastamba, i. 5. 15.Laws of Manu, ii. 121.Dhammapada, 109.

176Herodotus, ii. 80.

177Plato,Leges, ix. 879.Cf.Idem,Respublica, v. 465.

178Maine,Early Law and Custom, p. 243.

In Europe the paternal authority of the archaic type which we have just considered has gradually yielded to a system under which the father has been divested of the most essential rights he formerly possessed over his children—a system the inmost drift of which is expressed in the words of the French Encyclopedist, “Le pouvoir paternel est plutôt un devoir qu’un pouvoir.”179Already in pagan times the Romanpatria potestasbecame a shadow of what it had been. Under the Republic the abuses of paternal authority were checked by the censors, and in later times the Emperors reduced the father’s power within comparatively narrow limits. Not only was the life of the child practically as sacred as that of the parent long before Christianity became the religion of Rome,180but Alexander Severus ordained that heavy punishments should be inflicted on members of a family by the magistrate only. Diocletian and Maximilian took away the power of selling freeborn children as slaves. The father’s privilege ofdictating marriage for his sons declined into a conditional veto; and it seems that the daughters also, at length, gained a certain amount of freedom in the choice of a husband.181

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