RIGHTS OF WOMEN AS MODIFIED BY THE CHRISTIAN EMPERORS
Christianity became the state religion under Constantine, who issued the
Edict of Milan, giving toleration to the Christians, in the year 313.
The emperors from Constantine through Justinian (527-565) modified the
various laws pertaining to the rights of women in various ways. To the
enactments of Justinian, who caused the whole body of the Roman law to
be collected, I intend to give special attention. We must not, as yet,
expect to find the strict views of the Church Fathers carried out in any
severe degree. On the contrary the old Roman law was still so powerful
that it was for the most part beyond the control of ecclesiasts.
Justinian was an ardent admirer of it and could not escape from its
prevailing spirit. Canon law had not yet developed. When the old Roman
civilisation in Italy has succumbed completely to its barbarian
conquerors; when the East has been definitely sundered from the West;
when the Church has risen supreme, has won temporal power, and has
developed canon law into a force equal to the civil law,--then finally
we shall expect to see the legal rights of women changed in accordance
with two new world forces--the Roman Catholic Church and the Germanic
nations. I shall now discuss legislation having to do with my subject
under the Christian emperors from Constantine (306-337) through the
reign of Justinian (527-565).
[Sidenote: Divorce: rescript of Theodosius and Valentian.]
The power of husband and wife to divorce at will and for any cause,
which we have seen obtained under the old Roman law, was confined to
certain causes only by Theodosius and Valentinian (449
A.D.). These
emperors asserted vigorously that[249] the dissolution of the marriage
tie should be made more difficult, especially out of regard to the
children. Pursuant to this idea the power of divorce was given for the
following reasons alone: adultery, murder, treason, sacrilege, robbery;
unchaste conduct of a husband with a woman not his wife and vice-versa;
if a wife attended public games without her husband's permission; and
extreme physical violence of either party. A woman who sent her husband
a bill of divorce for any other reason forfeited her dowry and all
ante-nuptial gifts and could not marry again for five years, under
penalty of losing all civil rights. Her property accrued to her husband
to be kept in trust for the children.
[Sidenote: Justinian on divorce]
Justinian made more minute regulations on the subject of divorce. To the
valid causes for divorce as laid down by Theodosius and Valentinian he
added impotence; if a separation was obtained on this ground, the
husband might retain ante-nuptial gifts.[250] Abortion committed by the
wife or bathing with other men than her husband or inveigling other men
to be her paramours--these offences on the part of the wife gave her
husband the right of divorce.[251] Captivity of either party for a
prolonged period of time was always a valid reason.
Justinian added
also[252] that a man who dismissed his wife without any of the legal
causes mentioned above existing or who was himself guilty of any of
these offences must give to his wife one fourth of his property up to a
sum not to exceed one hundred _librae_ of gold, if he owned property
worth four hundred _librae_ or more; if he had less, one fourth of all
he possessed was forfeit. The same penalties held for the wife who
presumed to dismiss her husband without the offences legally recognised
existing. The forfeited money was at the free disposal of the blameless
party if there were no children; these being extant, the property must
be preserved intact for their inheritance and merely the usufruct could
be enjoyed by the trustees. A woman who secured a divorce through a
fault of her husband had always to wait at least a year before marrying
again _propter seminis confusionem_.[253]
[Sidenote: Justin revokes decrees of Justinian.]
Justin, the nephew and successor of Justinian, reaffirmed the right to
divorce by mutual consent, thus abrogating the laws of his
predecessors.[254] Justinian had ordained that if husband and wife
separated by mutual consent, they were to be forced to spend the rest of
their lives in a convent and forfeit to it one third of their
goods.[255] Justin, then, made the pious efforts of his uncle naught.
Nothing can more clearly illustrate than his decree how small a power
the Church still possessed to mould the tenor of the law; for such a
thing as divorce by mutual consent, without any necessary reason, was a
serious misdemeanour in the eyes of the Church Fathers, who passed upon
it their severest censures.
[Sidenote: Adultery.]
On the subject of adultery Justinian enacted that if the husband was the
guilty party, the dowry and marriage donations must be given his wife;
but the rest of his property accrued to his relatives, both in ascending
and descending lines, to the third degree; these failing, his goods
were confiscated to the royal purse.[256] A woman guilty of adultery was
at once sent to a monastery. After a space of two years her husband
could take her back again, if he so wished, without prejudice. If he did
not so desire, or if he died, the woman was shorn and forced to spend
the rest of her life in a nunnery; two thirds of her property were given
to her relatives in descending line, the other third to the monastery;
if there were no descendants, ascendants got one third and the monastery
two thirds; relatives failing, the monastery took all; and in all cases
goods inserted in the dowry contract were to be kept for the
husband.[257]
[Sidenote: Second marriages.]
[Sidenote: Strict laws of Gratian, Valentinian, and Theodosius.]
The legislation of the earlier Christian emperors on second marriages
reflects the various feelings of the Church Fathers on the subject.
Under the old law, people could marry as often as they wished without
any penalties.[258] But we have seen that among some of the Churchmen
second marriages were held in peculiar abhorrence, and third nuptials
were regarded as a hideous sin; while the orthodox clergy, like St.
Augustine and St. Jerome, permitted second and third marriages, but
damned them with faint praise and urged Christians to be content with
one venture. Public opinion, custom, and the influence of the old Roman
law were too powerful to allow Christian monarchs to become fanatical on
the subject[259]; but certain stricter regulations were introduced by
the pious Gratian, Valentinian, and Theodosius, in the years 380, 381,
and 382.[260] As under the old laws any widow who married again before
the legal time of mourning--a year--had expired, became infamous and
lost both cast and all claims to the goods of her deceased husband. She
was furthermore not permitted to give a second husband more than one
third of her property nor leave him more than one third by will; and she
could receive no intestate succession beyond the third degree. A woman
who proceeded to a second marriage after the legal period of mourning,
must make over at once to the children of the first marriage all the
property which her former husband had given or left to her. As to her
own personal property, she was allowed to possess it and enjoy the
income while she lived, but not to alienate it or leave it by will to
any one except the children of the first marriage. As I have before
remarked, Roman law constantly had the interest of the children at
heart.[261] If there was no issue of the first marriage, then the woman
had free control. A mother acquired full right--as the old Senatus
consultum Tertullianum had decreed--to the property of a son or daughter
who died childless[262]; but if she married a second time, and her son
or daughter died without leaving children or grandchildren, she was
expelled from all succession and distant relatives acquired the
property.[263]
[Sidenote: Justinian moderates these laws to a great degree.]
Justinian changed these enactments to a pronounced degree. "We are not
making laws that are too bitter against women who marry a second time,"
he remarks,[264] "and we do not want to lead them, in consequence of
such action, to the harsh necessity, unworthy of our age, of abstaining
from a chaste second marriage and descending to illegitimate
connections." He ordained, therefore, that the law mentioned above be
annulled and that mothers should have absolutely unrestricted rights of
inheritance to a deceased child's property along with the latter's
brothers and sisters; and second marriage was never to create any
prejudice.[265] In the earlier part of his reign Justinian also forbade
husband or wife to leave one another property under the stipulation that
the surviving partner must not marry again[266]; but later, when his
zeal for reform had become more pronounced and fanatical, he revoked
this and gave the conditioned party the option either of enjoying the
property by remaining unmarried or of forfeiting it by a second
union.[267]
[Sidenote: Breaking of engagements.]
Constantine ordained,[268] in the year 336, that if an engagement was
broken by the death of one of the contracting parties and if the
_osculum_[269] had taken place, half of whatever donations had been
given was to be handed over to the surviving party and half to the heirs
of the deceased; but if the solemn _osculum_ had not yet taken place,
all gifts went to the heirs of the deceased. There was also a law that
if either party broke the engagement to enter monastic life, the man who
did so lost all that he had given by way of earnest money for the
marriage contract (_arrarum nomine_); if it was the woman who took the
initiative, she was compelled to return twice the amount of any sums she
had received. This was changed by Justinian, who enacted that those who
broke an engagement to enter monastic life should merely return or
receive whatever donations had been made.[270]
Constantine and his
successors abrogated the old time Julian laws, which had inflicted
certain penalties--such as limited rights of inheritance--on men and
women who did not marry.[271]
[Sidenote: Changes in the law of gifts.]
I have already pointed out that gifts between husband and wife were
illegal and I have explained the reasons. Justinian allowed the husband
to make donations to his wife, in such wise, however, that all chance of
intent to defraud might be absent.[272] He ordained also that if husband
or wife left the married state to embrace a celibate life, each party
was to keep his or her own property as per marriage contract or as each
would legitimately in the case of the other's death.[273] If any one,
after vowing the monastic life, returned to the world, his or her goods
were forfeit to the monastery which he or she had left.[274]
[Sidenote: Various enactments on marriage.]
The consent of the father or, if he was dead, of near relatives was
emphatically declared necessary by the Christian emperors for a marriage
and the woman had practically no will of her own although, if several
suitors were proposed to her, she might be requested to name which one
she preferred.[275] Marriage with a Jew was treated as adultery.[276]
Women who belonged to heretical sects were to have no privileges.[277]
Justinus and Justinian abrogated the old law which forbade senators to
marry freedwomen or any woman who had herself or whose parents had
followed the stage. Actresses were now permitted, on giving up their
profession, to claim all the rights of other free women; and a senator
could marry such or even a freedwoman without prejudice.[278]
[Sidenote: Changes in the laws of inheritance.]
Under the old law, as we have seen, a son and a daughter had equal
rights to intestate succession; but beyond the relationship of daughter
to father or sister to brother women had no rights to intestate
succession unless there were no agnates, that is, male relatives on the
father's side. Thus, an aunt would not be called to the estate of a
nephew who died childless, but the uncle was regularly admitted. So,
too, a nephew was admitted to the intestate succession of an uncle, who
died without issue, but the niece was shut out. All this was changed by
Justinian, who gave women the same rights of inheritance as men under
such conditions.[279] If the children were unorthodox, they were to have
absolutely no share of either parent's goods.[280]
[Sidenote: Women as guardians.]
[Sidenote: In suits.]
The Christian emperors permitted widows to be guardians over their
children if they promised on oath not to marry again and gave security
against fraud.[281] Justinian forbade women to act by themselves in any
legal matters.[282]
[Sidenote: Bills of attainder.]
Arcadius and Honorius (397 A.D.) enacted some particularly savage bills
of attainder, which were in painful contrast to the clemency of their
pagan predecessors. Those guilty of high treason were decapitated and
their goods escheated to the crown. "To the sons of such a man [i.e.,
one condemned for high treason]," write these amiable Christians,[283]
"we allow their lives out of special royal mercy--for they ought really
to be put to death along with their fathers--but they are to receive no
inheritances. Let them be paupers forever; let the infamy of their
father ever follow them; they may never aspire to office; in their
lasting poverty let death be a relief and life a punishment. Finally,
any one who tries to intercede for these with us is also to be
infamous."[284] However, to the daughters of the condemned these
emperors graciously granted one fourth of their mother's but not any of
their father's goods. In the case of crimes other than high treason the
children or grandchildren were allowed one half of the estate.[285]
Constantine decreed that a wife's property was not to be affected by the
condemnation of her husband.[286]
[Sidenote: Rape.]
Ravishers of women, even of slaves and freedwomen, were punished by
Justinian with death; but in the case of freeborn women only did the
property of the guilty man and his abettors become forfeit to the
outraged victim. A woman no longer had the privilege of demanding her
assailant in marriage.[287]
SOURCES
Roman Law as cited in Chapter I, especially the _Novellae_ of Justinian.
NOTES:
[249] Codex, v, 17, 8 contains this rescript in full.
[250] Codex, v, 17, 10.
[251] Codex, v, 17, 11.
[252] Id.
[253] Novellae, 22, 18.
[254] Novellae, 140, 1: Antiquitus quidem licebat sine periculo tales
(i.e., those of incompatible temperament) ab invicem separari secundum
communem voluntatem et consensum hoc agentes, sicut et plurimae tunc
leges extarent hoc dicentes et _bona gratia_ sic procedentem solutionem
nuptiarum patria vocitantes voce. Postea vero divae memoriae nostro
patri.... legem sancivit prohibens cum consensu coniugia solvi.... Haec
igitur aliena nostris iudicantes temporibus in praesenti sacram
constituimus legem, per quam sancimus licere ut antiquitus consensu
coniugum solutiones nuptiarum fieri.
[255] Novellae, 134, 11.
[256] Novellae, 134, 10.
[257] Novellae, 134, 10.
[258] Novellae, 22 (praefatio): Antiquitas equidem non satis aliquid de
prioribus aut secundis perserutabatur nuptiis, sed licebat et patribus
et matribus et ad plures venire nuptias et lucro nullo privari, et causa
erat in simplicitate confusa.
[259] The language of some of them is pretty strong, however--matre iam
secundis nuptiis _funestata_--Codex, v, 9, 3 (Gratian, Valentinian,
Theodosius).
[260] For these see Codex, v, 9, 1 and 2 and 3.
[261] Cf. Codex, v, 9, 4. Nos enim hac lege id praecipue custodiendum
esse decrevimus, ut ex quocumque coniugio suscepti filii patrum suorum
sponsalicias retineant facilitates.
[262] Codex, vi, 56, 5.
[263] Novellae, ii, 3: ex absurditate legis, licet praemoriantur filii
omnes, non relinquentes filios aut nepotes, nihilominus supplicium
manet, et non succedit eis mater, sed expellitur ab eorum inhumane
successione ... sed succedunt quidem illis aliqui ex longa cognatione.
[264] Novellae, ii, 3.
[265] Novellae ii, 3.
[266] Codex, vi, 40, 2 and 3.
[267] Novellae, 22, 44: unde sancimus, si quis prohibuerit ad aliud
venire matrimonium, etc.
[268] Codex, v, 3, 16.
[269] The _osculum_ was a sort of "donation on account of marriage" made
on the day of the formal engagement.
[270] Codex, i, 3, 54 (56).
[271] Codex, viii, 57 (58), I and 2. Cf. Codex, viii, 58
(59), 1 and 2.
[272] Codex, v, 3, 10.
[273] Codex, i, 3, 54 (56). Gregory of Tours informs us that according
to the Council of Nicaea--325 A.D.--a wife who left her husband, to whom
she was happily married, to enter a nunnery incurred excommunication. He
means probably: if she went without her husband's consent. Greg. 9, 33:
Tunc ego accedens ad monasterium canonum Nicaenorum decreta relegi, in
quibus continetur: quia si quae reliquerit virum et thorum, in quo bene
vexit, spreverit, dicens quia non sit ei portio in illa caelestis regni
gloria qui fuerit coniugio copulatus, anathema sit.
(Note of editor:
Videtur esse canon 14 concilii Grangensis, quod concilium veteres
Nicaeno subiungere solebant; idque indicat titulus in veteribus
scriptis.)
[274] Codex, i, 3, 54 (56).
[275] Codex, v, 4, 20, and 5, 18.
[276] Codex, i, 9, 6.
[277] Novellae, cix, 1.
[278] Codex, v, 4, 23 and 28.
[279] Codex, vi, 58, 14.
[280] Codex, i, 5, 19.
[281] Codex, v, 35, 2 and 3.
[282] Codex, ii, 55, 6.
[283] Codex, ix, 8, 5.
[284] This law was evidently lasting, for it is quoted with approval by
Pope Innocent III, in the year 1199--see Friedberg, _Corpus Iuris
Canonici_, vol. ii, p. 782.
[285] Codex, ix, 49, 10.
[286] Codex, v, 16, 24.
[287] For all these enactments see Codex, i, 3, 53 (54), and ix, 13.