WOMEN'S RIGHTS UNDER ROMAN LAW, FROM AUGUSTUS TO
JUSTINIAN--27 B.C. TO
527 A.D.
[Sidenote: Guardianship.]
The age of legal capability for the Roman woman was after the twelfth
year, at which period she was permitted to make a will.[1] However, she
was by no means allowed to do so entirely on her own account, but only
under supervision.[2] This superintendence was vested in the father or,
if he was dead, in a guardian[3]; if the woman was married, the power
belonged to the husband. The consent of such supervision, whether of
father, husband, or guardian, was essential, as Ulpian informs us,[4]
under these circumstances: if the woman entered into any legal action,
obligation, or civil contract; if she wished her freedwoman to cohabit
with another's slave; if she desired to free a slave; if she sold any
things _mancipi_, that is, such as estates on Italian soil, houses,
rights of road or aqueduct, slaves, and beasts of burden. Throughout her
life a woman was supposed to remain absolutely under the power[5] of
father, husband, or guardian, and to do nothing without their consent.
In ancient times, indeed, this authority was so great that the father
and husband could, after calling a family council, put the woman to
death without public trial.[6] The reason that women were so subjected
to guardianship was "on account of their unsteadiness of character,"[7]
"the weakness of the sex," and their "ignorance of legal matters."[8]
Under certain circumstances, however, women became _sui iuris_ or
entirely independent: I. By the birth of three children (a freedwoman by
four)[9]; II. By becoming a Vestal Virgin, of whom there were but
six[10]; III. By a formal emancipation, which took place rarely, and
then often only with a view of transferring the power from one guardian
to another.[11] Even when _sui iuris_ a woman could not acquire power
over any one, not even over her own children[12]; for these an agnate--a
male relative on the father's side--was appointed guardian, and the
mother was obliged to render him and her children an account of any
property which she had managed for them.[13] On the other hand, her
children were bound to support her.[14]
[Sidenote: Digression on the growth of respect for women]
So much for the laws on the subject. They seem rigorous enough, and in
early times were doubtless executed with strictness. A marked feature,
however, of the Roman character, a peculiarity which at once strikes the
student of their history as compared with that of the Greeks, was their
great respect for the home and the _materfamilias_. The stories of
Lucretia, Cloelia, Virginia, Cornelia, Arria, and the like, familiar to
every Roman schoolboy, must have raised greatly the esteem in which
women were held. As Rome became a world power, the Romans likewise grew
in breadth of view, in equity, and in tolerance. The political
influence wielded by women[15] was as great during the first three
centuries after Christ as it has ever been at any period of the world's
history; and the powers of a Livia, an Agrippina, a Plotina, did not
fail to show pointedly what a woman could do. In the early days of the
Republic women who touched wine were severely punished and male
relatives were accustomed solemnly to kiss them, if haply they might
discover the odour of drink on their breath.[16]
Valerius Maximus tells
us that Egnatius Mecenas, a Roman knight, beat his wife to death for
drinking wine.[17] Cato the Censor (234-149 B.C.) dilated with joy on
the fact that a woman could be condemned to death by her husband for
adultery without a public trial, whereas men were allowed any number of
infidelities without censure.[18] The senator Metellus (131 B.C.)
lamented that Nature had made it necessary to have women.[19]
The boorish cynicism of a Cato and a Metellus--though it never expressed
the real feelings of the majority of Romans--gave way, however, under
the Empire to a generous expression of the equality of the sexes in the
realms of morality and of intellect. "I know what you may say," writes
Seneca to Marcia,[20] "'You have forgotten that you are consoling a
woman; you cite examples of fortitude on the part of men.' But who said
that Nature had acted scurvily with the characters of women and had
contracted their virtues into a narrow sphere? Equal force, believe me,
is possessed by them; equal capability for what is honorable, if they
so wish." The Emperor Marcus Aurelius gratefully recalls that from his
mother he learned piety and generosity, and to refrain not only from
doing ill, but even from thinking it, and simplicity of life, far
removed from the ostentatious display of wealth.[21] The passionate
attachment of men like Quintilian and Pliny to their wives exhibits an
equality based on love that would do honour to the most Christian
households.[22] All Roman historians speak with great admiration of the
many heroic deeds performed by women and are fond of citing conspicuous
examples of conjugal affection.[23] The masterly and sympathetic
delineation of Dido in the _Aeneid_ shows how deeply a Roman could
appreciate the character of a noble woman. In the numerous provisions
for the public education at the state's expense girls were given the
same opportunities and privileges as boys; there were five thousand boys
and girls educated by Trajan alone.[24]
[Sidenote: Decay of the power or the guardian.]
Such are a few examples of the growth of respect for women; and we
should naturally conclude that, as time progressed, the unjust laws of
guardianship would no longer be executed to the letter, even though the
hard statutes were not formally expunged. This was the case during the
first three centuries after Christ, as is patent from many sources. It
is to be borne in mind that because a law is on the books, does not mean
necessarily that it is enforced. A law is no stronger than public
opinion. Of this anomaly there are plenty of instances even to-day--the
Blue Laws of Massachusetts, for example. "That women of mature age
should be under guardianship," writes the great jurist Gaius[25] in the
second century, "seems to have no valid reason as foundation. For what
is commonly believed, to the effect that on account of unsteadiness of
character they are generally hoodwinked, and that, therefore, it is
right for them to be governed by the authority of a guardian, seems
rather specious than true. As a matter of fact, women of mature age do
manage their own affairs, and in certain cases the guardian interposes
his authority as a mere formality; frequently, indeed, he is forced by
the supreme judge to lend his authority against his will." Ulpian, too,
hints at the really slight power of the guardian in his day, that is,
the first three decades of the third century. "In the case of male and
female wards under age, the guardians both manage their affairs and
interpose their authority; but in the case of mature women they merely
interpose their authority."[26] The woman had, in practice, become free
to manage her property as she wished; the function of the legal guardian
was simply to see to it that no one should attempt a fraud against her.
Adequately to observe the decay of the vassalage of women, we must
investigate the story of their rights in all its forms; and the position
of women in marriage will next occupy our attention.
[Sidenote: Women and marriage.]
As in all Southern countries where women mature early, the Roman girl
usually married young; twelve years were required by custom for her to
reach the marriageable age.[27] In the earlier period a woman was
acquired as wife in three different ways: I. By _coemptio_--a mock sale
to her husband[28]; II. By _confarreatio_--a solemn marriage with
peculiar sacred rites to qualify men and women and their children for
certain priesthoods[29]; III. By _usus_, or acquisition by prescription.
A woman became a man's legal wife by _usus_ if he had lived with her one
full year and if, during that time, she had not been absent from him for
more than three successive nights.[30]
All these forms, however, had either been abolished by law or had fallen
into desuetude during the second century of our era, as is evident from
Gaius.[31] A man could marry even if not present personally; a woman
could not.[32] The woman's parents or guardians were accustomed to
arrange a match for her,[33] as they still do in many parts of Europe.
Yet the power of the father to coerce his daughter was limited. Her
consent was important. "A marriage cannot exist,"
remarks Paulus,
"unless all parties consent."[34] Julianus writes also that the daughter
must give her permission[35]; yet the statement of Ulpian which
immediately follows in the Digest shows that she had not complete free
will in the matter: "It is understood that she who does not oppose the
wishes of her father gives consent. But a daughter is allowed to object
only in case her father chooses for her a man of unworthy or disgraceful
character."[36] The son had an advantage here, because he could never be
forced into a marriage against his will.[37] The consent of the father
was always necessary for a valid marriage.[38] He could not by will
compel his daughter to marry a certain person.[39] After she was
married, he still retained power over her, unless she became independent
by the birth of three children; but this was largely to protect her and
represent her in court against her husband if necessity should
arise.[40] A father was not permitted to break up a harmonious[41]
marriage; he could not get back his daughter's dowry without her
consent,[42] nor force her to return to her husband after a divorce[43];
and he was punished with loss of citizenship if he made a match for a
widowed daughter before the legal time of mourning for her husband had
expired.[44] A daughter passed completely out of the power of her father
only if she became _sui iuris_ by the birth of three children or if she
became a Vestal, or again if she married a special priest of Jupiter
(_Flamen Dialis_), in which case, however, she passed completely into
the power of her husband. Under all circumstances a daughter must not
only show respect for her father, but also furnish him with the
necessaries of life if he needed them.[45]
[Sidenote: "Breach of Promise."]
Under the Empire no such thing as a "breach of promise"
suit was
permitted, although in the days of the Republic the party who broke a
promise to marry had been liable to a suit for damages.[46] But this had
now disappeared, and either party could break off the betrothal at
pleasure without prejudice.[47] Whatever gifts had been given might be
demanded back.[48] The engagement had to be formally broken off before
either party could enter into marriage or betrothal with another;
otherwise he or she lost civil status.[49] While an engagement lasted,
the man could bring an action for damages against any one who insulted
or injured his fiancée.[50]
[Sidenote: Husband and Wife.]
The Roman marriage was a purely civil contract based on consent.[51] The
definition given by the law was a noble one. "Marriage is the union of a
man and a woman and a partnership of all life; a mutual sharing of laws
human and divine."[52] The power of the husband over the wife was called
_manus_; and the wife stood in the same position as a daughter.[53] No
husband was allowed to have a concubine.[54] He was bound to support his
wife adequately, look out for her interests,[55] and strictly to avenge
any insult or injury offered her[56]; any abusive treatment of the wife
by the husband was punished by an action for damages[57]. A wife was
compelled by law to go into solemn mourning for a space of ten months
upon the death of a husband[58]. During the period of mourning she was
to abstain from social banquets, jewels, and crimson and white
garments[59]. If she did not do so, she lost civil status. The emperor
Gordian, in the year 238, remitted these laws so far as solemn clothing
and other external signs of mourning above enumerated were
concerned.[60] But a husband was not compelled to do any legal mourning
for the death of his wife.[61]
The wife was, as I have said, in the power of her husband. Originally,
no doubt, this power was absolute; the husband could even put his wife
to death without a public trial. But the world was progressing, and that
during the first three centuries after Christ the power of the husband
was reduced in practice to absolute nullity I shall make clear in the
following pages. I shall, accordingly, first investigate the rights of
the wife over her dowry, that is, the right of managing her own
property.
Even from earliest times it is clear that the wife had complete control
of her dowry. The henpecked husband who is afraid of offending his
wealthy wife is a not uncommon figure in the comedies of Plautus and
Terence; and Cato the Censor growled in his usual amiable manner at the
fact that wives even in his day controlled completely their own
property.[62] The attitude of the Roman law on the subject is clearly
expressed. "It is for the good of the state that women have their
dowries inviolate."[63] "The dowry is always and everywhere a chief
concern; for it is for the public good that dowries be retained for
women, since it is highly necessary that they be dowered in order to
bring forth offspring and replenish the state with children."[64] "It is
just that the income of the dowry belong to the husband; for inasmuch as
it is he who stands the burdens of the married state, it is fair that he
also acquire the interest."[65] "Nevertheless, the dowry belongs to the
woman, even though it is in the goods of the husband."[66] "A husband is not permitted to alienate his wife's estate against her will."[67] A
wife could use her dowry during marriage to support herself, if
necessary, or her kindred, to buy a suitable estate, to help an exiled
parent, or to assist a needy husband, brother, or sister. The numerous
accounts in various authors of the first three centuries after Christ
confirm the statement that the woman's power over her dowry was
absolute.[68] Then as now, a man might put his property in his wife's
name to escape his creditors,[69]--a useless proceeding, if she had not
had complete control of her own property.
When the woman died, her dowry, if it had been given by the father (_dos
profecticia_) returned to the latter; but if any one else had given it
(_dos adventicia_), the dowry remained with the husband, unless the
donor had expressly stipulated that it was to be returned to himself at
the woman's death (_dos recepticia_),[70] In the case of a dowry of the
first kind, the husband might retain what he had expended for his
wife's funeral.[71] The dowry was confiscated to the state if the woman
was convicted of lèse majesté, violence against the state, or
murder.[72] If she suffered punishment involving loss of civil status
under any other law which did not assess the penalty of confiscation,
the husband acquired the dowry just as if she were dead.
Banishment
operated as no impediment; if the woman wished to leave her husband
under these circumstances, her father could recover the dowry.[73]
A further confirmation of the power of the wife over her property is the
law that prohibited gifts between husband and wife; obviously, a woman
could not be said to have the power of making a gift if she had no right
of property of her own. The object of the law mentioned was to prevent
the husband and wife from receiving any lasting damage to his or her
property by giving of it under the impulse of conjugal affection.[74]
This statute acted powerfully to prevent a husband from wheedling a wife
out of her goods; and in case the latter happened to be of a grasping
disposition the law was a protection to the husband and hence to the
children, his heirs, for whose interests the Roman law constantly
provided.
Gifts between husband and wife were nevertheless valid under certain
conditions. It was permissible to make a present of clothing and to
bestow various tokens of affection, such as ornaments.
The husband could
present his wife with enough money to rebuild a house of hers which had
burned.[75] The Emperor Marcus Aurelius permitted a wife to give her
husband the sum necessary to obtain public office or to become a senator
or knight or to give public games.[76] A gift was also legal if made by
the husband in apprehension that death might soon overtake him; if, for
instance, he was very sick or was setting out to war, or to exile, or on
a dangerous journey.[77] The point in all gifts was, that neither party
should become richer by the donation.[78]
Some further considerations of the relation of husband and wife will aid
in setting forth the high opinion which Roman law entertained of
marriage and its constant effort to protect the wife as much as
possible. A wife could not be held in a criminal action if she committed
theft against her husband. The various statements of the jurists make
the matter clear. Thus Paulus[79]: "A special action for the recovery of
property removed [_rerum amotarum iudicium_] has been introduced
against her who was a wife, because it has been decided that it is not
possible to bring a criminal action for theft against her [_quid non
placuit cum ea furti agere posse_]. Some--as Nerva Cassius--think she
cannot even commit theft, on the ground that the partnership in life
made her mistress, as it were. Others--like Sabinus and Proculus--hold
that the wife can commit theft, just as a daughter may against her
father, but that there can be no criminal action by established law."
"As a mark of respect to the married state, an action involving disgrace
for the wife is refused."[80] "Therefore she will be held for theft if
she touches the same things after being divorced. So, too, if her slave
commits theft, we can sue her on the charge. But it is possible to bring
an action for theft even against a wife, if she has stolen from him
whose heirs we are or before she married us; nevertheless, as a mark of
respect we say that in each case a formal claim for restitution alone is
admissible, but not an action for theft."[81] "If any one lends help or
advice to a wife who is filching the property of her husband, he shall
be held for theft. If he commits theft with her, he shall be held for
theft, although the woman herself is not held."[82]
A husband who did not avenge the murder of his wife lost all claims to
her dowry, which was then confiscated to the state; this by order of the
Emperor Severus.[83]
The laws on adultery are rather more lenient to the woman than to the
man. In the first place, the Roman law insisted that it was unfair for a
husband to demand chastity on the part of his wife if he himself was
guilty of infidelity or did not set her an example of good
conduct,[84]--a maxim which present day lawyers may reflect upon with
profit. A father was permitted to put to death his daughter and her
paramour if she was still in his power and if he caught her in the act
at his own house or that of his son-in-law; otherwise he could not.[85]
He must, however, put both man and woman to death at once, when caught
in the act; to reserve punishment to a later date was unlawful. The
husband was not permitted to kill his wife; he might kill her paramour
if the latter was a man of low estate, such as an actor, slave, or
freedman, or had been convicted on some criminal charge involving loss
of citizenship.[86] The reason that the father was given the power which
was denied the husband was that the latter's resentment would be more
likely to blind his power of judging dispassionately the merits of the
case.[87] If now the husband forgot himself and slew his wife, he was
banished for life if of noble birth, and condemned to perpetual hard
labour if of more humble rank.[88] He must at once divorce a wife guilty
of adultery; otherwise he was punished as a pander, and that meant loss
of citizenship.[89] Women convicted of adultery were, when not put to
death, punished by the loss of half their dowry, a third part of their
other goods, and relegation to an island; guilty men suffered the loss
of half of their possessions and similar relegation to an island; but
the guilty parties were never confined in the same place.[90] We have
mention also in several writers of some curious and vicious punishments
that might be inflicted on men guilty of adultery.[91]
Now, all this seems rigorous enough; but, as I have already remarked, we
must beware of imagining that a statute is enforced simply because it
stands in the code. As a matter of fact, public sentiment had grown so
humane in the first three centuries after Christ that it did not for a
moment tolerate that a father should kill his daughter, no matter how
guilty she was; and in all our records of that period no instance
occurs. As to husbands, we have repeated complaints in the literature of
the day that they had grown so complaisant towards erring wives that
they could not be induced to prosecute them.[92] A typical instance is
related by Pliny.[93] Pliny was summoned by the Emperor Trajan to attend
a council where, among other cases, that of a certain Gallitta was
discussed. She had married a military tribune and had committed adultery
with a common captain (_centurio_). Trajan sent the captain into exile.
The husband took no measures against his wife, but went on living with
her. Only by coercion was he finally induced to prosecute. Pliny informs
us that the guilty woman had to be condemned, even against the will of
her accuser.
A woman guilty of incest received no punishment, but the guilty man was
deported to an island.[94] If the incest involved adultery, the woman
was of course held on that charge.
[Sidenote: Divorce]
We come now to a matter where the growing freedom of women reached its
highest point--the matter of divorce. Here again we have to note the
progress of toleration and humanitarianism. In the early days of the
Republic the family tie was rarely severed. Valerius Maximus tells
us[95] of a quaint custom of the olden days, to the effect that
"whenever any quarrel arose between husband and wife, they would proceed
to the chapel of the goddess Viriplaca ["Reconciler of Husbands"], which
is on the Palatine, and there they would mutually express their
feelings; then, laying aside their anger, they returned home
reconciled." During these days a woman could never herself take the
initiative in divorce; the husband was all-powerful. The first divorce
of which we have any record took place in the year 231
B.C., when
Spurius Carvilius Ruga put away his wife for sterility.
Public opinion
censured him severely for it "because people thought that not even the
desire for children ought to have been preferred to conjugal fidelity
and affection."[96] As the Empire extended and Rome became more worldly
and corrupt, the reasons for divorce became more trivial. Sempronius
Sophus divorced his wife because she had attended some public games
without his knowledge.[97] Cicero, who was a lofty moralist--on
paper,--put away his wife Terent