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A Short History of Women's Rights
by Eugene A. Hecker
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A Short History of Women's Rights

From the Days of Augustus to the Present Time. With Special Reference to England and the United States

By Eugene A. Hecker

SECOND EDITION REVISED, WITH ADDITIONS



To

MY MOTHER



PREFACE TO THE SECOND EDITION

In this edition a chapter has been added, bringing down to date the record of the contest for equal suffrage. The summary on pages 175-235 is now largely obsolete; but it has been retained as instructive evidence of the rapid progress made during the last four years.

E.A.H.

CAMBRIDGE, MASS. August, 1914.



PREFACE

While making some researches in the evolution of women's rights, I was impressed by the fact that no one had ever, as far as I could discover, attempted to give a succinct account of the matter for English-speaking nations. Indeed, I do not believe that any writer in any country has essayed such a task except Laboulaye; and his Recherches sur la Condition Civile et Politique des Femmes, published in 1843, leaves much to be desired to one who is interested in the subject to-day.

I have, therefore, made an effort to fill a lack. This purpose has been strengthened as I have reflected on the great amount of confused information which is absorbed by those who have no time to make investigations for themselves. Accordingly, in order to present an accurate historical review, I have cited my authorities for all statements regarding which any question could be raised. This is particularly so in the chapters which deal with the condition of women under Roman Law, under the early Christian Church, and under Canon Law. In all these instances I have gone directly to primary sources, have investigated them myself, and have admitted no secondhand evidence. In connection with Women's rights in England and in the United States I have either consulted the statutes or studied the commentaries of jurists, like Messrs. Pollock and Maitland, whose authority cannot be doubted. To such I have given the exact references whenever they have been used. In preparing the chapter on the progress of women's lights in the United States I derived great assistance from the very exhaustive History of Woman Suffrage, edited by Miss Susan B. Anthony, Mrs. Ida H. Harper, and others to whose unselfish labours we are for ever indebted. From their volumes I have drawn freely; but I have not given each specific reference.

The tabulation of the laws of the several States which I have given naturally cannot be entirely adequate, because the laws are being changed constantly. It is often difficult to procure the latest revised statutes. However, these laws are recent enough to illustrate the evolution of women's rights.

Finally, this volume was written in no hope that all readers would agree with the author, who is zealous in his cause. His purpose will be gained if he induces the reader to reflect for himself on the problem in the light of its historical development.

E.A.H.

CAMBRIDGE, MASS., 1910.



CONTENTS

CHAPTER I

WOMEN'S RIGHTS UNDER ROMAN LAW, 27 B.C.-527 A.D.

Originally women were always under guardianship—But under the Empire the entire equality of the sexes was recognised—Women in marriage—Their power over their property—Divorce—Women engaged in all business pursuits—Instances of women suing and pleading in law—Partiality of the law towards women—Rights of inheritance—Rights to higher education fully allowed—Provision made for poor children to be educated—The Vestals—Female slaves—Remarkable growth of humanitarianism towards slaves under the Empire—Sources

CHAPTER II

WOMEN AND THE EARLY CHRISTIAN CHURCH

Christ laid down ethical principles but not minute regulations—The Apostles affected by Jewish and Oriental or Greek conceptions of women—Examples of these—St. Paul and St. Peter on the position of women—The Church Fathers elaborated these teachings—Examples of their contempt for women—Mingled with admiration for particular types of women—Their views of marriage—Their strictures on unbecoming dress—Summary of their views and how the status of women was affected by them—Sources

CHAPTER III

RIGHTS OF WOMEN AS MODIFIED BY THE CHRISTIAN EMPERORS

Old Roman Law not abrogated suddenly—Divorce—Adultery—Second marriages—Engagements—Donations between husband and wife—Sundry enactments on marriage—Inheritance—Guardianship—Bills of Attainder of Christian Emperors merciless, in contrast to acts of pagan predecessors—Sources

CHAPTER IV

WOMEN AMONG THE GERMANIC PEOPLES

A second world force to modify the status of women—Accounts of Caesar and Tacitus on position of women among Germanic peoples—The written laws of the barbarians—Guardianship—Marriage—Power of the husband—Divorce—Adultery—The Church indulgent to kings—Remarriage—Property rights—Peculiarities of the criminal law—Minutely-graded fines—Compurgation and ordeals—Innocence tested by the woman walking over red-hot ploughshares—Women in slavery—Comparison of position of women under Roman and under Germanic laws—Influence of theology—Sources

CHAPTER V

DIGRESSION ON THE LATER HISTORY OF ROMAN LAW

Explanation of the various social and political forces which affected the position of women in the Middle Ages

CHAPTER VI

THE CANON LAW AND THE ATTITUDE OF THE ROMAN CATHOLIC CHURCH

Canon law reaffirms the subjection of women—Women and marriage—Protection to women—Divorce—Cardinal Gibbons on protection of injured wives by Popes—Catholic Church has no divorce—But it allows fourteen reasons for declaring marriage null and void and leaving a husband or wife free to remarry—Some of these explained—Diriment impediments and dispensations—Historical instances of the Roman Church's inconsistency—Attitude towards women at present day—Opinions of Cardinals Gibbon and Moran, and Rev. David Barry and Rev. William Humphrey—Sources

CHAPTER VII

WOMEN'S RIGHTS IN ENGLAND

Single women have always had private rights—But males preferred in inheritance—Examples—Power of parents—Husband and wife—Wife completely controlled by husband—He could beat her and own all her property—Recent abrogation of the husband's power—Divorce—Jeremy Taylor and others on duty of women to bear husband's sins with meekness—Injustice of the present law of divorce—Rape and the age of legal consent—Progress of the rights to an education—Women in the professions—Woman suffrage—Sources

CHAPTER VIII

WOMEN'S RIGHTS IN THE UNITED STATES

Examples of the early opposition to women's rights—Age of consent—Single women—History of agitation for women's rights—Convention of 1848—Progress after the Civil War—Beginnings of higher education—First women in medicine—And in law, the ministry, journalism, and industry—Status of women in all the States in 1910—Sources

CHAPTER IX

GENERAL CONSIDERATIONS

The five arguments commonly used against equal suffrage—The theological—The physiological—The social or political—The intellectual—The moral—Lecky on the nature of women—The old and the new conception—Thomas on the power of custom—Taboo—All evolution accompanied by some extravagance—Macaulay on liberty—The double standard of morality—Co-operation—The proper sphere for a human being—Discrepancies of wages—Legal evolution in the interpretation of labour laws—The alarmist view of divorce

CHAPTER X

FURTHER CONSIDERATIONS

The rapid spread of suffrage throughout the world—Table of suffrage gains from early times to present date—In national politics in the United States—Attack on the suffrage parade and colloquy between Mr. Hobson and Mr. Mann on the subject—Suffrage amendment defeated in the Senate—Mr. Heflin's remarks in the House—Mr. Falconer replies—President Wilson refuses to take a stand—Amendment lost—Mr. Bryan on suffrage—Examples of legislation to protect women passed recently—The tendency is to complete equality of the sexes—Suffrage in England—A delayed reform in divorce—Women's rights on the Continent—Especially in Germany—Schopenhauer's views of women—Further remarks on the philosophy of suffrage—"Woman's sphere"—Ultimate results of women entering all businesses and professions—Feminism—The home is not necessarily every woman's sphere and neither is motherhood nor is it her congenital duty to make herself attractive to men—Unreasonableness of gratuitous advice to women and none to men—What we don't know—Fallacy of the argument that the fall of the Roman Empire was due to the liberty given to woman—Official organs of various suffrage societies

INDEX



A Short History of Women's Rights



CHAPTER I

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 fiancee.[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 lese majeste, 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 Terentia in order to marry a rich young ward and get her money if he could. Maecenas, the great prime-minister of Augustus, sent away and took back his wife repeatedly at caprice—perhaps he believed that variety is the spice of life. But during all this time the husband alone could annul marriage.[98]

Gradually, however, the status of women changed and they were given greater and greater liberty. Inasmuch as Roman marriage was a civil contract based on consent, strict justice had to allow that on this basis either party to the contract might annul the marriage at his or her pleasure. The result was that during the first three centuries after Christ the wife had absolute freedom to take the initiative and send her husband a divorce whenever and for whatever reason she wished. The proof of this fact is positively established not only from the statements of the jurists, but also from numberless accounts in the other writers of the day.[99] Divorce became, at least among the higher strata of society, extraordinarily frequent. That a lady of the Upper Four Hundred should have been content with only one husband was deemed worthy of special mention on her tomb; the word univira (a woman of one husband) may still be read on certain inscriptions. The satirists are fond of dwelling on the license allowed to women in the case of divorce. Martial, for instance,[100] says that one Theselina married ten husbands in one month. Still, allowing for the natural exaggeration of satirists, we are yet reasonably sure that divorce had reached great heights in the upper classes. Whether it was as bad among the middle classes is very improbable. There was one kind of marriage which, originally at least, did not admit of dissolution.[101] This was the solemn marriage by confarreatio, already described, which qualified the husband and wife for the special priesthood of Jupiter. Women soon grew to value their freedom too highly to enter it; as early as 23 A.D. the Senate had to relax some of the rigour of the old laws on the matter as a special inducement for women to consent to enter this union.[102]

We may now observe what became of the wife's property after divorce and what her rights were under such circumstances. If it was the husband who had taken the initiative and had sent his wife a divorce, and if the divorce was not the fault of the woman, she at once had an action in law for complete recovery of her dowry; on her own responsibility if she was sui iuris, otherwise with the help of her father.[103] But even the woman still under guardianship could act by herself if her father was too sick or infirm or if she had no other agent to act for her.[104] For the offence of adultery a husband had to pay back the dowry at once; for lesser guilt he might return it in instalments at intervals of six months.[105] If, now, the divorce was clearly the fault of the woman, her husband could retain certain parts of the dowry in these proportions: for adultery, a sixth part for each of the children up to one half of the whole; for lighter offences, an eighth part; if the husband had gone to expense or had incurred civil obligations for his wife's benefit or if she had removed any of his property, he could recover the amount.[106]

A year and six months must elapse after a divorce before the woman was allowed to marry again.[107] If at the time of the divorce she was pregnant, her husband was obliged to support her offspring, provided that within thirty days after the separation she informed him of her condition.[108] She could sue her former husband for damages if he insulted her.[109] Whether the children should stay with the mother or father was left to the discretion of the judge.[110]

[Sidenote: Property rights of widows and single women.]

The married woman had, as I have shown, complete disposal of her own property. Let us see next what rights those women had over their possessions who were widows or spinsters.

Roman Law constantly strove to protect the children and laid it down as a maxim that the property of their parents belonged to them.[111] A widow could not therefore, except by special permission from the emperor,[112] be the legal guardian of her children, but must ask the court to appoint one upon the death of her husband.[113] This was to prevent possible mismanagement and because "to undertake the legal defence of others is the office of men."[114] But she was permitted to assume complete charge of her children's property during their minority and enjoy the usufruct; only she must render an account of the goods when the children arrived at maturity.[115] We have many instances of women who managed their children's patrimony and did it exceedingly well. "You managed our patrimony in such wise," writes Seneca to his mother,[116] "that you exerted yourself as if it were yours and yet abstained from it as if it belonged to others."[117] Agricola, father-in-law of Tacitus, had such confidence in his wife's business ability that he made her co-heir with his daughter and the Emperor Domitian.[118] A mother could get an injunction to restrain extravagance on the part of her children.[119] Women could not adopt.[120]

Married women, spinsters, and widows had as much freedom as men in disposing of property by will. If there were children, the Roman law put certain limitations on the testator's powers, whether man or woman. By the Falcidian Law no one was allowed to divert more than three fourths of his estate from his (or her) natural heirs.[121] But for any adequate cause a woman could disinherit her children completely; and there are many instances of this extant both in the Law Books and in the literature of the day.[122]

Single women had grown absolutely unshackled and even their guardians had become a mere formality, as the words of Gaius, already quoted (page 8) prove. That they had complete disposal of their property is proved furthermore by the numerous complaints in Roman authors about the sycophants who flattered and toadied the wealthy ladies with an eye to being remembered in their wills.[123] For it is evident that if these women had not had the power freely to dispose of their own property, there would have been no point in paying them such assiduous court. The legal age of maturity was now twenty-five for both male and female.

[Sidenote: Women engaged in business pursuits.]

Women engaged freely in all business pursuits. We find them in all kinds of retail trade and commerce,[124] as members of guilds,[125] in medicin[126] innkeeping,[127] in vaudevil[128]; there were even female barbers[129] and charioteer[130]. Examples of women who toiled for a living with their own hands are indeed very old, as the widow, described by Homer, who worked for a scanty wage to support her fatherless children, or the wreathmaker, mentioned by Aristophanes.[131] But such was the case only with women of the lower classes; the lady of high birth acted through her agents.[132]

[Sidenote: The right of women to sue.]

When so many women were engaged in business, occasions for lawsuits would naturally arise; we shall see next what power the woman had to sue. It was a standing maxim of the law that a woman by herself could not conduct a case in court.[133] She had to act through her agent, if she was independent, otherwise through her guardian. The supreme judge at Rome and the governor in a province assigned an attorney to those who had no agent or guardian.[134] But in this case again custom and the law were at variance. Various considerations will make it clear that women who sued had, in practice, complete disposal of the matter. I.—A woman who was still under the power of her father must, according to law, sue with him as her agent or appoint an agent to act with him. Nevertheless, a father could do nothing without the consent of his daughter.[135] Obviously, then, so far as the power of the father was concerned, a woman had practically the management of her suit. II.—The husband had no power. If he tried to browbeat her as to what to do, she could send him a divorce, a privilege which she had at her beck and call, as we have seen; and then she could force him to give her any guardian she wanted.[136] III.—That the authority of other guardians was in practice a mere formality, I have already proved (pp. 7 and 8).

From these considerations it is clear that the woman's wishes were supreme in the conduct of any suit. Moreover, the law expressly states that women may appoint whatever attorneys or agents they desire, without asking the consent of their legal guardians[137]; and thus they were at liberty to select a man who would manage things as they might direct. There were cases where even the strict letter of the law permitted women to lay an action on their own responsibility alone: if, when a suit for recovery of dowry was brought, the father was absent or hindered by infirmities[138]; if the woman sued or was sued to get or render an account of property managed in trust[139]; to avenge the death of a parent or children, or of patron or patroness and their children[140]; to lay bare any matter pertaining to the public grain supply[141]; and to disclose cases of treason.[142]

[Sidenote: Instances of women pleading in public and suing.]

We read of many cases of women pleading publicly and bringing suit. Indeed, according to Juvenal—who is, however, a pessimist by profession—the ladies found legal proceedings so interesting that bringing suit became a passion with them as strong as it had once been among the Athenians. Thus Juvenal[143]: "There is almost no case in which a woman wouldn't bring suit. Manilia prosecutes, when she isn't a defendant. They draw up briefs quite by themselves, and are ready to cite principles and authorities to Celsus [a celebrated lawyer of that time]." Of pleading in public one of the celebrated instances was that of Hortensia, daughter of the great orator Quintus Hortensius, Cicero's rival. On an occasion when matrons had been burdened with heavy taxes and none of their husbands would fight the measure, Hortensia pleaded the case publicly with great success. All writers speak of her action and the eloquence of her speech with great admiration.[144] We hear also of a certain Gaia Afrania, wife of a Senator; she always conducted her case herself before the supreme judge, "not because there was any lack of lawyers," adds her respectable and scandalised historian,[145] "but because she had more than enough of impudence."

Quintilian mentions several cases of women being sued[146]; Pliny tells how he acted as attorney for some[147]; and the Law Books will supply any one curious in the matter with abundant examples.[148] A quotation from Pliny[149] will give an idea of the kind of suit a woman might bring, and the great interest aroused thereby: "Attia Viriola, a woman of illustrious birth and married to a former supreme judge, was disinherited by her eighty-year-old father within eleven days after he had brought Attia a stepmother. Attia was trying to regain her share of her father's estate. One hundred and eighty jurors sat in judgment. The tribunal was crowded, and from the higher part of the court both men and women strained over the railings in their eagerness to hear (which was difficult), and to see (which was easy)."

[Sidenote: Partiality of the law to women.]

There were many legal qualifications designed to help women evade the strict letter of the law when this, if enforced absolutely, would work injustice. Ignorance of the law, if there was no criminal offence involving good morals, was particularly accepted in the case of women "on account of the weakness of the sex."[150] A typical instance of the growth of the desire to help women, protect them as much as possible, and stretch the laws in their favour, may be taken from the senatorial decree known as the Senatus Consultum Velleianum.[151] This was an order forbidding females to become sureties or defendants for any one in a contract. But at the end of the first century of our era the Senate voted that the law be emended to help women and to give them special privileges in every class of contract. "We must praise the farsightedness of that illustrious order," comments the great jurist Ulpian,[152] "because it brought aid to women on account of the weakness of the sex, exposed, as it is, to many mishaps of this sort."

[Sidenote: Rights of women to inherit.]

The rights of women to inherit under Roman law deserve some mention. Here again we may note a steady growth of justice. Some general examples will make this clearer, before I treat of the specific powers of inheritance. I.—In the year 169 B.C. the Tribune Quintus Voconius Saxa had a law passed which restricted greatly the rights of women to inherit.[153] According to Dio[154] no woman was, by this statute, permitted to receive more than 25,000 sesterces—1250 dollars. In the second century after Christ, this law had fallen into complete desuetude.[155] II.—By the Falcidian Law, passed in the latter part of the first century B.C., no citizen was allowed to divert more than three fourths of his estate from his natural heirs.[156] The Romans felt strongly against any man who disinherited his children without very good reason; the will of such a parent was called inofficiosum, "made without a proper feeling of duty," and the disinherited children had an action at law to recover their proper share.[157] A daughter was considered a natural heir no less than a son and had equal privileges in succession[158]; and so women were bound to receive some inheritance at least. III.—It is a sad commentary on Christian rulers that for many ages they allowed the crimes of the father to be visited upon his children and by their bills of attainder confiscated to the state the goods of condemned offenders. Now, the Roman law stated positively that "the crime or punishment of a father can inflict no stigma on his child."[159] So far as the goods of the father were concerned, the property of three kinds of criminals escheated to the crown: (1) those who committed suicide while under indictment for some crime,[160] (2) forgers,[161] (3) those guilty of high treason[162]. Yet it seems reasonable to doubt whether these laws were very often carried out strictly to the letter. For example, the law did indeed hold that the estate of a party guilty of treason was confiscated to the state[163]; but even here it was expressly ordained that the goods of the condemned man's freedmen be reserved for his children.[164] Moreover, in actual practice we can find few instances where the law was executed in its literal severity even under the worst tyrants. It was Julius Caesar who first set the splendid example of allowing to the children of his dead foes full enjoyment of their patrimonies.[165] Succeeding emperors followed the precedent.[166] Tyrants like Tiberius and Nero, strangely enough, in a majority of cases overruled the Senate when it proposed to confiscate the goods of those condemned for treason, and allowed the children a large part or all of the paternal estate.[167] Hadrian gave the children of proscribed offenders the twelfth part of their father's goods.[168] Antoninus Pius gave them all.[169] There was a strong public feeling against bills of attainder and this sentiment is voiced by all writers of the Empire. The law forbade wives to suffer any loss for any fault of their husbands.[170]

Since we have now noticed that women could inherit any amount, that they were bound to receive something under their fathers' wills, and that the guilt of their kin could inflict no prejudice upon them in the way of bills of attainder involving physical injury or civil status and, in practice, little loss so far as inheriting property was concerned, we may pass to a contemplation of the specific legal rights of inheritance of women.

If women were to be disinherited, it was sufficient to mention them in an aggregate; but males must be mentioned specifically.[171] If, however, they were disinherited in an aggregate (inter ceteros), some legacy had to be left them that they might not seem to have been passed over through forgetfulness.[172] I shall not concern myself particularly with testate succession, because here obviously the will of the testator could dispose as he wished, except in so far as he was limited by the Falcidian Law. The matter of intestate succession may well claim our attention; for therein we shall see what powers of inheritance were given the female sex. The general principles are explained by Gaius (iii, 1-38); and these principles followed, in the main, the law as laid down in the Twelve Tables (451 B.C.). According to these, the estates of those who died intestate belonged first of all to the children who were in the power of the deceased at the time of his death; there was no distinction of sex; the daughters were entitled to precisely the same amount as the sons.[173] If the children of the testator had died, the grandson or granddaughter through the son succeeded; or the great-grandson or great-granddaughter through the grandson. If a son a daughter were alive, as well as grandsons and granddaughters through the son, they were all equally called to the estate. The estate was not divided per capita, but among families as a whole; for example, if of two sons one only was alive, but the other had left children, the testator's surviving son received one half of the patrimony and his grandchildren through his other son the other half, to be divided among them severally. If, then, there were six grandchildren, each received one twelfth of the estate.

Here the powers of women to inherit stopped. Beyond the tie of consanguinitas, that is, that of daughter to father, or granddaughter through a son, the female line must at once turn aside, and had no powers; the estate descended to the agnati, that is, male relatives on the father's side. Hence a mother was shut out by a brother of the deceased or by that brother's children. If there were no agnati, the goods were given to the gentiles, male relatives of the clan bearing the same name. In fact, under this regime we may say that of the female line the daughter alone was sure of inheriting something.

In the days of the Empire some attempts were made to be more just. It was enacted[174] that all the children should be called to the estate, whether they had been under the power of the testator at the time of his death or not; and female relatives were now allowed to come in for their share "in the third degree," that is, if there was neither a child or an agnate surviving. This was not much of an improvement; and the principle of agnate succession is the only point in which Roman law failed to give to women those equal rights which it allowed them in other cases.

[Sidenote: Protection of property of children.]

There is no point on which Roman law laid more stress than that the children, both male and female, were to be constantly protected and must receive their legal share of their father's or mother's goods. After a husband's divorce or death his wife could, indeed, enjoy possession of the property and the usufruct; but the principal had to be conserved intact for the children until they arrived at maturity. In the same way a father was obliged to keep untouched for the children whatever had been left them by the mother on her decease[175]; and he must also leave them that part, at least, of his own property prescribed by the Falcidian Law. A case—and it was common enough in real life—such as that described by Dickens in David Copperfield, where, by the English law, a second husband acquired absolute right over his wife's property and shut out her son, would have been impossible under Roman law. Neither husband nor wife could succeed to one another's intestate estate absolutely unless there were no children, parents, or other relatives living.[176]

[Sidenote: Punishment of crimes against women.]

Rape of a woman was punished by death; accessories to the crime merited the same penalty.[177] Indecent exposure before a virgin met with punishment out of course.[178] Kidnapping was penalised by hard labour in the mines or by crucifixion in the case of those of humble birth, and by confiscation of half the goods and by perpetual exile in the case of a noble.[179] Temporary exile was visited upon those guilty of abortion themselves[180]; if it was caused through the agency of another, the agent, even though he or she did so without evil intent, was punished by hard labour in the mines, if of humble birth, and by relegation to an island and confiscation of part of their goods, if of noble rank.[181] If the victim died, the person who caused the abortion was put to death.[182]

[Sidenote: Rights of women to an education.]

The rights of women to an education were not questioned. That Sulpicia could publish amatory poems in honour of her husband and receive eulogies from writers like Martial[183] shows that she and ladies like her occupied somewhat the same position as Olympia Morata and Tarquinia Molza later in Italy during the Renaissance, or like some of the celebrated Frenchwomen, such as Madame de Stael. Seneca addresses a Dialogue on Consolation to one Marcia; such an idea would have made the hair of any Athenian gentleman in the time of Socrates stand on end. Aspasia was obliged to be a courtesan in order to become educated and to frequent cultivated society[184]; Sulpicia was a noble matron in good standing. The world had not stood still since Socrates had requested some one to take Xanthippe home, lest he be burdened by her sympathy in his last moments. Pains were taken that the Roman girl of wealth should have special tutors.[185] "Pompeius Saturninus recently read me some letters," writes Pliny[186] to one of his correspondents, "which he insisted had been written by his wife. I believed that Plautus or Terence was being read in prose. Whether they are really his wife's, as he maintains; or his own, which he denies; he deserves equal honour, either because he composes them, or because he has made his wife, whom he married when a mere girl, so learned and polished." The enthusiasm of the ladies for literature is attested by Persius.[187]

According to Juvenal, who, as an orthodox satirist, was not fond of the weaker sex, women sometimes became over-educated. He growls as follows[188]: "That woman is a worse nuisance than usual who, as soon as she goes to bed, praises Vergil; makes excuses for doomed Dido; pits bards against one another and compares them; and weighs Homer and Maro in the balance. Teachers of literature give way, professors are vanquished, the whole mob is hushed, and no lawyer or auctioneer will speak, nor any other woman." The prospect of a learned wife filled the orthodox Roman with peculiar horror.[189] No Roman woman ever became a public professor as did Hypatia or, ages later, Bitisia Gozzadina, who, in the thirteenth century, became doctor of canon and civil law at the University of Bologna.

I have been speaking of women of the wealthier classes; but the poor were not neglected. As far back as the time of the Twelve Tables—450 B.C.—parents of moderate means were accustomed to club together and hire a schoolroom and a teacher who would instruct the children, girls no less than boys, in at least the proverbial three R's. Virginia was on her way to such a school when she encountered the passionate gaze of Appius Claudius. Such grammar schools, which boys and girls attended together, flourished under the Empire as they had under the Republic.[190] They were not connected with the state, being supported by the contributions of individual parents. To the end we cannot say that there was a definite scheme of public education for girls at the state's expense as there was for boys.[191] Still, the emperors did something. Trajan, Hadrian, Antoninus Pius, Marcus Aurelius, and Alexander Severus, for example, regularly supplied girls and boys with education at public expense[192]; under Trajan there were 5000 children so honoured. Public-spirited citizens were also accustomed to contribute liberally to the same cause; Pliny on one occasion[193] gave the equivalent of $25,000 for the support and instruction of indigent boys and girls.

[Sidenote: The Vestals.]

It may not be out of place to speak briefly of the Vestal Virgins, the six priestesses of Vesta, who are the only instances in pagan antiquity of anything like the nuns of the Christians. The Vestals took a vow of perpetual chastity.[194] They passed completely out of the power of their parents and became entirely independent. They could not receive the inheritance of any person who died intestate, and no one could become heir to a Vestal who died intestate. They were allowed to be witnesses in court in public trials, a privilege denied other women. Peculiar honour was accorded them and they were regularly appointed the custodians of the wills of the emperors.[195]

[Sidenote: Female slaves.]

The position of women in slavery merits some attention, in view of the huge multitudes that were held in bondage. Roman law acknowledged no legal rights on the part of slaves[196]. The master had absolute power of life and death.[197] They were exposed to every whim of master or mistress without redress.[198] If some one other than their owner harmed them they might obtain satisfaction through their master and for his benefit; but the penalty for the aggressor was only pecuniary.[199] A slave's evidence was never admitted except under torture.[200] If a master was killed, every slave of his household and even his freedmen and freedwomen were put to torture, although the culprit may already have been discovered, in order to ascertain the instigator of the plot and his remotest accessories.[201]

The earlier history of Rome leaves no doubt that before the Republic fell these laws were carried out with inhuman severity. With the growth of Rome into a world power and the consequent rise of humanitarianism[202] a strong public feeling against gratuitous cruelty towards slaves sprang up. This may be illustrated by an event which happened in the reign of Nero, in the year 58, when a riot ensued out of sympathy for some slaves who had been condemned en masse after their master had been assassinated by one of them.[203] Measures were gradually introduced for alleviating the hardships and cruelties of slavery. Claudius (41-54 A.D.) ordained[204] that since sick and infirm slaves were being exposed on an island in the Tiber sacred to Aesculapius, because their masters did not wish to bother about attending them, all those who were so exposed were to be set free if they recovered and never to be returned into the power of their masters; and if any owner preferred to put a slave to death rather than expose him, he was to be held for murder. Gentlemen began to speak with contempt of a master or mistress who maltreated slaves.[205] Hadrian (117-138 A.D.) modified the old laws to a remarkable degree: he forbade slaves to be put to death by their masters and commanded them to be tried by regularly appointed judges; he brought it about that a slave, whether male or female, was not to be sold to a slave-dealer or trainer for public shows without due cause; he did away with ergastula or workhouses, in which slaves guilty of offences were forced to work off their penalties in chains and were confined to filthy dungeons; and he modified the law previously existing to the extent that if a master was killed in his own house, the inquisition by torture could not be extended to the whole household, but to those only who, by proximity to the deed, could have noticed it.[206] Gaius observes[207] that for slaves to be in complete subjection to masters who have power of life and death is an institution common to all nations, "But at this time," he continues, "it is permitted neither to Roman citizens nor any other men who are under the sway of the Roman people to vent their wrath against slaves beyond measure and without reason. In fact, by a decree of the sainted Antoninus (138-161 A.D.) a master who without cause kills his slave is ordered to be held no less than he who kills another's slave.[208] An excessive severity on the part of masters is also checked by a constitution of the same prince. On being consulted by certain governors about those slaves who rush for refuge to the shrines of the gods or the statues of emperors, he ordered that if the cruelty of masters seemed intolerable they should be compelled to sell their slaves." Severus ordained that the city prefect should prevent slaves from being prostituted[209]. Aurelian gave his slaves who had transgressed to be heard according to the laws by public judges[210]. Tacitus procured a decree that slaves were not to be put to inquisitorial torture in a case affecting a master's life, not even if the charge was high treason[211]. So much for the laws that mitigated slavery under the Empire. They were not ideal; but they would in more respects than one compare favourably with the similar legislation that was in force, prior to the Civil War, in the American Slave States.

SOURCES

I. Iurisprudentiae Anteiustinianae quae Supersunt. ed. Ph. Eduardus Huschke. Lipsiae (Teubner), 1886 (fifth edition).

II. Codex Iustinianus. Recensuit Paulus Krueger. Berolini apud Weidmannos, 1877.

Corpus Iuris Civilis: Institutiones recognovit Paulus Krueger; Digesta recognovit Theodorus Mommsen. Berolini apud Weidmannos, 1882.

Novellae: Corpus Iuris Civilis. Volumen Tertium recognovit Rudolfus Schoell; Opus Schoellii morte interceptum absolvit G. Kroll. Berolini apud Weidmannos, 1895.

III. The Fragments of the Perpetual Edict of Salvius Julianus. Edited by Bryan Walken Cambridge University Press. 1877.

IV. Pomponii de Origine Iuris Fragmentum: recognovit Fridericus Osannus. Gissae, apud Io. Rickerum, 1848.

V. Corpus Inscriptionum Latinarum, Consilio et Auctoritate Academiae Litterarum Regiae Borussicae editum. Berolini apud Georgium Reimerum (begun in 1863).

VI. Valerii Maximi Factorum et Dictorum Memorabilium Libri Novem: cum Iulii Paridis et Ianvarii Nepotiani Epitomis: iterum recensuit Carolus Kempf. Lipsiae (Teubner), 1888.

VII. Cassii Dionis Cocceiani Rerum Romanarum libri octaginta: ab Immanuele Bekkero Recogniti. Lipsiae, apud Weidmannos, 1849.

VIII. C. Suetoni Tranquilli quae Supersunt Omnia: recensuit Carolus L. Roth. Lipsiae (Teubner), 1898.

IX. A. Persii Flacci, D. Iunii Iuvenalis, Sulpiciae Saturae; recognovit Otto Iahn. Editio altera curam agente Francisco Buecheler. Berolini, apud Weidmannos, 1886.

X. Eutropi Breviarium ab Urbe Condita: recognovit Franciscus Ruehl. Lipsiae (Teubner), 1897.

XI. Herodiani ab Excessu Divi Marci libri octo: ab Immanuele Bekkero recogniti. Lipsiae (Teubner), 1855.

XII. A. Gellii Noctium Atticarum libri XX: edidit Carolus Hosius. Lipsiae (Teubner), 1903.

XIII. Petronii Saturae et Liber Priapeorum: quartum edidit Franciscus Buecheler: adiectae sunt Varronis et Senecae Saturae similesque Reliquiae. Berolini, apud Weidmannos, 1904.

XIV. M. Valerii Martialis Epigrammaton libri: recognovit Walther Gilbert. Lipsiae (Teubner), 1896.

XV. Cornelii Taciti Libri qui Supersunt: quartum recognovit Carolus Halm. Lipsiae (Teubner), 1901.

XVI. C. Vellei Paterculi ex Historiae Romanae libris duobus quae supersunt: edidit Carolus Halm. Lipsiae (Teubner), 1876.

XVII. L. Annaei Senecae Opera quae Supersunt: recognovit Fridericus Haase. Lipsiae (Teubner), 1898.

XVIII. Athenaei Naucratitae Deipnosophistaro libri XV: recensuit Georgius Kaibel. Lipsiae (Teubner), 1887.

XIX. Lucii Apulei Metamorphoseon libri XI. Apologia et Florida. Recensuit J. van der Vliet. Lipsiae (Teubner), 1897.

XX. C. Plini Caecili Secundi Epistularum libri novem. Epistularum ad Traianum liber. Panegyricus. Recognovit C.F.W. Mueller. Lipsiae (Teubner), 1903.

XXI. Scriptores Historiae Augustae: edidit Hermannus Peter. Lipsiae (Teubner), 1888.

XXII. M. Fabii Quintiliani Institutionis Oratoriae libri XII: recensuit Eduardus Bonnell. Lipsiae (Teubner), 1905.

XXIII. Marci Antonini Commentariorum libri XII: iterum recensuit Ioannes Stich. Lipsiae (Teubner), 1903.

XXIV. C. Plinii Secundi Naturalis Historiae libri XXXVII: recognovit Ludovicus Ianus. Lipsiae (Teubner), 1854.

XXV. XII Panegyrici Latini: recensuit Aemilius Baehrens. Lipsiae (Teubner), 1874.

XXVI. Plutarchi Scripta Moralia, Graece et Latine: Parisiis, editore Ambrosio F. Didot, 1841.

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NOTES:

[1] Paulus, iii, 4a, 1.

[2] Ulpian, Tit., xx, 16. Gaius, ii, 112.

[ 3: Male relatives on the father's side—agnati—were guardians in such cases; these failing, the judge of the supreme court (praetor) assigned one. See Ulpian, Tit., xi, 3, 4, and 24. Gaius, i, 185, and iii, 10. Libertae (freedwomen) took as guardians their former masters.]

[4] Ulpian, Tit., xi, 27.

[5] The power of the father was called potestas; that of the husband, manus.

[6] Aulus Gellius, x, 23. Cf. Suetonius, Tiberius, 35.

[7] Gaius, i, 144.

[8] Ulpian, Tit., xi, I.

[9] Ulpian, Tit., xi, 28a. Gaius, i, 194. Paulus, iv, 9, 1-9.

[10] Gaius, i, 145. Ulpian, Tit., x, 5.

[11] Gaius, i, 137. For an example see Pliny, Letters, viii, 18. Cf. Spartianus. Didius Iulianus, 8: filiam suam, potitus imperio, dato patrimonio, emancipaverat. See also Dio, 73, 7 (Xiphilin).

If emancipated children insulted or injured their parents, they lost their independence—Codex, 8, 49 (50), 1.

[12] Ulpian, Tit., viii, 7a.

[13] Paulus, i, 4, 4; Mater, quae filiorum suorum rebus intervenit, actione negotiorum gestorum et ipsis et eorum tutoribus tenebitur.

[14] Ulpian in Dig., 25, 3, 5.

[15] For Livia's great influence over Augustus see Seneca, de Clementia, i, 9, 6. Tacitus, Annals, i, 3, 4, and 5, and ii, 34. Dio, 55, 14-21, and 56, 47.

Agrippina dominated Claudius—Tacitus, Annals, xii, 37. Dio, 60, 33. Caenis, the concubine of Vespasian, amassed great wealth and sold public offices right and left—Dio, 65, 14. Plotina, wife of Trajan, engineered Hadrian's succession—Eutropius, viii, 6. Dio, 69, I. A concubine formed the conspiracy which overthrew Commodus—Herodian, i, 16-17. The plotting of Maesa put Heliogabalus on the throne—Capitolinus, Macrinus, 9-10. Alexander Severus was ruled by his mother Mammaea—Lampridius, Alex. Severus, 14; Herodian, vi, i, i and 9. Gallienus invited women to his cabinet meetings—Trebellius Pollio, Gallienus, 16. The wives of governors took such a strenuous part in politics and army matters that it caused the Senate grave concern—see examples in Tacitus, Annals, in, 33 and 34, and iv, 20; also i, 69, and ii, 55; id. Hist., iii, 69. Vellcius Paterculus, ii, 74 (Fulvia).

Of course, no woman ever had a right to vote; but neither did anybody else, since the Roman government had become an absolute despotism. The first woman on the throne was Pulcheria, who, in 450 A.D., was proclaimed Empress of the East, succeeding her brother, Theodosius II. But she soon took a husband and made him Emperor. She had been practically sole ruler since 414.

[16] Plutarch, Roman Questions, 6. Aulus Gellius, x, 23. Athenaeus, x, 56.

[17] Valerius Maximus, vi, 3, 9. For this he was not even blamed, but rather received praise for the excellent example.

[18] Aulus Gellius, x, 23. A woman in the Menaechmi of Plautus, iv, 6, 1, complains justly of this double standard of morality:

Nam si vir scortum duxit clam uxorem suam, Id si rescivit uxor, impune est viro. Uxor viro si clam domo egressa est foras, Viro fit causa, exigitur matrimonio. Utinam lex esset cadem quae uxori est viro!

[19] Aulus Gellius, i, 6.

[20] De Consolatione ad Marciam, xvi, 1.

[21] Commentaries, A, [Greek: gamma].

[22] Quintilian, Instit. Orat., vi, 1, 5. Pliny, Letters, vi, 4 and 7, and vii, 5.

[23] Great admiration expressed for Paulina, wife of Seneca, who opened her veins to accompany her husband in death—Tacitus, Annals, xv, 63, 64. Story of Arria and Paetus—Pliny, Letters, iii, 16. Martial, i, 13. The famous instance of Epponina, under Vespasian, and her attachment to her condemned husband—Tacitus, Hist., iv, 67. Tacitus mentions that many ladies accompanied their husbands to exile and death—Annals, xvi, 10, 11. Numerous instances are related by Pliny of tender and happy marriages, terminated only by death—see, e.g., Letters, viii, 5. Pliny the elder tells how M. Lepidus died of regret for his wife after being divorced from her—N.H., vii, 36. Valerius Maximus devotes a whole chapter to Conjugal Love—iv, 6. But the best examples of deep affection are seen in tomb inscriptions—e.g., CIL i, 1103, viii, 8123, ii, 3596, v, 1, 3496, v, 2, 7066, x, 8192, vi, 3, 15696, 15317, and 17690. Man and wife are often represented with arms thrown about one another's shoulders to signify that they were united in death as in life. The poet Statius remarks that "to love a wife when she is living is pleasure; to love her when dead, a solemn duty" (Silvae, in prooemio). Yet some theologians would have us believe that conjugal love and fidelity is an invention of Christianity.

[24] Pliny, Panegyricus, 26. For other instances see Capitolinus, Anton. Pius, 8; Lampridius, Alex. Severus, 57; Spartianus, Hadrian, 7, 8, 9; Capitolinus, M. Anton. Phil., 11.

[25] Gaius, i, 190.

[26] Ulpian, Tit. xi, 25. Cf. Frag, iur Rom. Vatic. (Huschke, 325): Divi Diocletianus et Constantius Aureliae Pontiae: Actor rei forum sequi debet et mulier quoque facere procuratorem sine tutoris auctoritate non prohibetur. So Papinian, lib. xv, Responsorum (Huschke, 327). I shall discuss these matters at greater length when I treat of women and the management of their property.

[27] Dio, 54, 16. Pomponius in Dig., 23, 2, 4.

[28] Gaius, i, 113.

[29] Ulpian, Tit., ix, 1: Farreo convenit uxor in manum certis verbis et testibus X praesentibus et sollemni sacrificio facto, in quo panis quoque farreus adhibetur. Cf. Gaius, i, 112.

[30] Aulus Gellius, iii, 2, 12. Gaius, i, 111.

[31] Gaius, i, 110 and 111.

[32] Paulus, ii, xix, 8.

[33] Pliny, Letters, i, 14, will furnish an example; cf. id. vi, 26, to Servianus: Gaudeo et gratulor, quod Fusco Salinatori filiam tuam destinasti. Note the way in which Julius Caesar arranged a match for his daughter—Suetonius, Divus Julius, 21.

[34] Paulus in Dig., 23, 2, 2: Nuptiae consistere non possunt, nisi consentiunt omnes, id est, qui coeunt quorumque in potestate sunt.

[35] Julianus in Dig., 23, 1, 11.

[36] Ulpian in Dig., 23, 1, 12.

[37] Paulus in Dig., 23, 1, 13. Terentius Clemens in Dig., 23, 2, 21.

[38] Paulus, ii, 19, 2.

[39] Ulpian, 24, 17.

[40] Cf. Ulpian, Tit., vi, 6: Divortio facto, si quidem sui juris sit muller, ipsa habet rei uxoriae actionem, id est, dotis repetitionem; quodsi in potestate patris sit, pater adiuncta filiae persona habet actionem.

The technical recognition of the father's power was still strong. Cf. Pliny, Panegyricus, 38: Tu quidem, Caesar ... intuitus, opinor, vim legemque naturae, quae semper in dicione parentum esse liberos iussit. The same writer, on requesting Trajan to give citizenship to the children of a certain freedman, is careful to add the specification that they are to remain in their father's power—see Pliny to Trajan, xi (vi).

[41] Paulus, vi, 15. Codex, v, 4, 11, and 17, 5.

[42] Paulus, in Dig., 23, 3, 28. Codex, v, 13, 1, and 18, 1.

[43] Codex, v, 17, 5.

[44] Salvius Julianus: Frag. Perp. Ed.: Pars Prima, vii—under "De is qui notantur infamia."

[45] Codex, 8, 46 (47), 5.

[46] Aulus Gellius, iv, 4.

[47] Juvenal, vi, 200-203. Gaius in Dig., 24, 2, 2. Ulpian, ibid., 23, I, 10. Codex, v, 17, 2, and v, I, I.

[48] Codex, v, 3, 2.

[49] Dig., 3, 2, 1.

[50] Ulpian in Dig., 47, 10, 24.

[51] Cf. Alexander Severus in Codex, viii, 38, 2: Libera matrimonia esse antiquitus placuit, etc. Also Codex, v, 4, 8 and 14.

[52] Modestinus in Dig., xxiii, 2, 1.

[53] Gaius, ii, 159.

[54] Paulus, ii, xx, 1.

[55] Note the rescript of Alexander Severus to a certain Aquila (Codex, ii, 18, 13): Quod in uxorem tuam aegram erogasti, non a socero repetere, sed adfectioni tuae debes expendere.

[56] See, e.g., Dig., 47, 10, and Ulpian, ibid., 48, 14, 27.

[57] Cf. Gaius, i, 141: In summa admonendi sumus, adversus eos, quos in mancipio habemus, nihil nobis contumeliose facere licere; alioquin iniuriarum (actione) tenebimur.

[58] Paulus, i, 21, 13.

[59] Paulus, i, 21, 14.

[60] Codex, ii, 11, 15

[61] Paulus in Dig., iii, 2, 9.

[62] Aulus Gellius, xvii, 6, speech of Cato: Principio vobis mulier magnam dotem adtulit; tum magnam pecuniam recipit, quam in viri potestatem non committit, ean pecuniam viro mutuam dat; postea, ubi irata facta est, servum recepticum sectari atque flagitare virum iubet.

[63] Paulus in Dig., 23, 3, 2.

[64] Pomponius in Dig., 24, 3, 1.

[65] Ulpian in Dig., 23, 3, 7.

[66] Tryfoninus in Dig., 23, 3, 75.

[67] Gaius, ii, 63. Paulus, ii, 21b.

[68] E.g. Juvenal, vi, 136-141. Martial, viii, 12.

[69] Apuleius Apologia, 523: Pleraque tamen rei familiaris in nomen uxoris callidissima fraude confert, etc.; id., 545, 546 proves further the power of the wife: ea condicione factam conjunctionem, si nullis a me susceptis liberis vita demigrasset, ut dos omnis, etc.—evidently the woman was dictating the disposal of her dowry.

[70] Ulpian, Tit., vi, 3, 4, and 5. Codex, v, 18, 4.

[71] Ulpian in Dig., xi, 7, 16; ibid., Papinian, 17; ibid, Julianus, 18. Paulus, i, xxi, 11.

[72] Ulpian in Dig., 48, 20, 3.

[73] Ulpian in Dig., 48, 20, 5.

[74] Ulpian in Dig., 24, 1, 1: Moribus apud nos receptum est, ne inter virum et uxorem donationes valerent, hoc autem receptum est, ne mutuo amore invicem spoliarentur, donationibus non temperantes, sed profusa erga se facilitate.

[75] Paulus in Dig., 24, 1, 14.

[76] Gaius in Dig., 24, 1, 42; ibid., Licinius Rufus, 41; Ulpian, Tit. vii, 1. Martial, vii, 64—et post hoc dominae munere factus eques.

[77] Paulus, ii, xxiii, 1.

[78] Cf. Paulus, ii, xxiii, 2.

[79] Paulus in Dig., 25, 2, 1. Codex, v, 21, 2.

[80] Gaius in Dig., 25, 2, 2.

[81] Paulus in Dig., 25, 2, 3.

[82] Ulpian in Dig., 47, 2, 52. The respect shown for family relations may be seen also from the fact that a son could complain—de facto matris queri—if he believed that his mother had brought in supposititious offspring to defraud him of some of his inheritance; but he was strictly forbidden to bring her into court with a public and criminal action—Macer in Dig., 48, 2, 11: sed ream eam lege Cornelia facere permissum ei non est.

[83] Ulpian in Dig., 48, 14, 27.

[84] Ulpian in Dig., 48, 5, 14 (13): Iudex adulterii ante oculos habere debet et inquirere, an maritus pudice vivens mulieri quoque bonos mores colendi auctor fuerit periniquum enim videtur esse, ut pudicitiam vir ab uxore exigat, quam ipse non exhibeat. Cf. Seneca, Ep., 94: Scis improbum esse qui ab uxore pudicitiam exigit, ipse alienarum corruptor uxorum. Scis ut illi nil cum adultero, sic nihil tibi esse debere cum pellice. Antoninus Pius gave a husband a bill for adultery against his wife "Provided it is established that by your life you give her an example of fidelity. It would be unjust that a husband should demand a fidelity which he does not himself keep"—quoted by St. Augustine, de Conj. Adult., ii, ch. 8. In view of these explicit statements it is difficult to see what the Church Father Lactantius meant by asserting (de Vero Cultu, 23): Non enim, sicut iuris publici ratio est, sola mulier adultera est, quae habet alium; maritus autem, etiamsi plures habeat, a crimine adulterii solutus est. Perhaps this deliberate distortion of the truth was another one of the libels against pagan Rome of which the pious Fathers are so fond "for the good of the Church."

[85] Papinian in Dig., 48, 5, 21 (20); ibid., Ulpian, 24 (23). Paulus, ii, xxvi.

[86] Macer in Dig., 48, 5, 25 (24).

[87] Papinian in Dig., 48, 5, 23 (22).

[88] Papinian in Dig., 48, 5, 39 (38); ibid., Marcianus, 48, 8, 1.

[89] Paulus, ii, xxvi. Macer in Dig., 48, 5, 25 (24), ibid., Ulpian, 48, 5, 30 (29).

[90] Paulus, ii, xxvi.

[91] Juvenal, x. 317; quosdam moechos et mugilis intrat. Cf. Catullus, 15, 19.

[92] See, e.g., Capitolinus, Anton. Pius, 3. Spartianus, Sept. Severus, 18, Pliny, Panegyricus, 83: multis illustribus dedecori fuit aut inconsultius uxor assumpta aut retenta patientius, etc.

[93] Pliny, Letters, vi, 31.

[94] Paulus, ii, xxvi, 15.

[95] Valerius Maximus, ii, 1, 6.

[96] Aulus Gellius, xvii, 21, 44. Valerius Maximus, ii, 1, 4. Plutarch, Roman Questions, 14.

[97] Valerius Maximus, vi, 3, 12.

[98] "If you should catch your wife in adultery, you would put her to death with impunity; she, on her part, would not dare to touch you with her finger; and it is not right that she should"—Speech of Cato the Censor, quoted by Aulus Gellius, x, 23.

[99] E.g., Marcellus in Dig., 24, 3, 38: Maevia Titio repudium misit, etc.; ibid., Africanus, 24, 3, 34: Titia divortium a Seio fecit, etc. Martial, x, 41: Mense novo lani veterem, Proculeia, maritum Deseris, atque iubes res sibi habere suas. Apuleius, Apologia, 547: utramvis habens culpam mulier, quae aut tam intolerabilis fuit ut repudiaretur aut tam insolens ut repudiaret.

Novellae, 140, 1: Antiquitus quidem licebat sine periculo tales [i.e., those of incompatible temperament] ab invicem separari secundum communem voluntatem et consensum.

[100] Martial, vi, 7.

[101] Aulus Gellius, x, 15: Matrimonium flaminis nisi morte dirimi ius non est.

[102] Tacitus, Annals, iv, 16.

[103] Ulpian, vi, 6; id. in Dig., 24, 3, 2. Pauli fragmentam in Boethii commentario ad Topica, 2, 4, 19.

[104] Paulus in Dig. ii,3, 41.

[105] Ulpian, vi, 13.

[106] Ulpian, vi, 9-17, and vii, 2-3. Pauli frag, in Boethii comm. ad Top., ii, 4, 19.

[107] Ulpian, xiv: feminis lex Iulia a morte viri anni tribuit vacationem, a divortio sex mensum; lex autem Papia a morte viri biennii, a repudio anni et sex mensum.

[108] Ulpian in Dig., 25, 3, 1. Paulus, ii, xxiv, 5.

[109] Ulpian in Dig., 25, 4, 8.

[110] Codex, v, 24, 1.

[111] Codex, vi, 60, 1: Res, quae ex matris successione fuerint ad filios devolutae, ita sint in parentum potestate, ut fruendi dumtaxat habeant facultatem, dominio videlicet carum ad liberos pertinente.

[112] Neratius in Dig., 26, 1, 18.

[113] Codex, v, 35, 1.

[114] Codex, ii, 12, 18: alienam suscipere defensionem virile officium est ... filio itaque tuo, si pupillus est, tutorem pete.

[115] Ulpian, Tit. viii, 7a. Paulus, i, 4, 4.

[116] ad Helviam matrem de consol., xiv, 3.

[117] Other instances of women trustees will be found in Apuleius, Apologia 516; Paulus in Dig; iii, 5,23 (24): avia nepotis sui negotia gessit, etc.; ibid., Marcellus, 46, 3, 48: Titia cum propter dotem bona mariti possideret, omnia pro domina egit, reditus exegit, etc.

[118] Tacitus, Agricola, 43.

[119] Frag. iur. Rom. Vat., 282.

[120] Ulpian, viii, 7a.

[121] Gaius, ii, 227. Digest, 35, 2.

[122] E.g. Pliny, Letters, v, 1. Codex, iii, 28, 19; id., iii, 28, 28. Cf. Codex, iii, 29, I, and 29, 7; and Paulus in Dig., v, 2, 19. Note the extreme anxiety of the son of Prudentilla about her money as given by Apuleius, Apologia, 517. The estate of a mother who died intestate went to her children, not to her husband; the latter could only enjoy the interest until they arrived at maturity—Codex, vi, 60, 1; Modestinus in Dig., 38, 17, 4.

[123] E.g., Juvenal, iv, 18-21. Pliny, Letters, ii, 20.

[124] Digest, xiv, 1 and 3 and 8—on the actio exercitoria and institoria. Cf. Codex, iv, 25, 4: et si a muliere magister navis praepositus fuerit, etc.

[125] CIL, xiv, 326.

[126] Martial, xi, 71. Apuleius, Metam., v, 10. Soranus, i, 1, ch. 1 and 2. Galen, vii, 414 (cf. xiii, 341).

[127] E.g. Suetonius, Nero, 27.

[128] Carmina Priapea, 18 and 27. Ulpian, xiii, 1. The Roman drama had now degenerated into mere vaudeville, mostly lascivious dancing. Senators and their children were forbidden to marry any woman who had herself or whose father or mother had been on the stage.

[129] Martial, ii, 17, 1.

[130] Petronius, Sat., 45: Titus noster ... habet et mulierem essedariam. This would not be strange, when we reflect that under Domitian noble ladies even fought in the arena.

[131] Thesmophoriazusae, 443-459.

[132] See Cicero, pro Caecina, 5, for an account of these business agents for women.

[133] Paulus, ii, xi; id. in Dig., 16, 1, 1; Aulus Gellius, v, 19; Pomponius in Dig., 48, 2, 1: non est permissum mulieri publico iudicio quemquam reum facere.

[134] Ulpian in Dig., 1, 16, 9. Salvius Julianus, Pars Prima, vi: si non habebunt advocatum, ego dabo. Alexander Severus (222-235 A.D.) gave pensions to those advocates in the provinces who pleaded free of charge—Lampridius, Alex. Severus, 44.

[135] Cf. Paulus in Dig., 23, 3, 28. Codex, v, 13, 1, and 18, 1. Ulpian in Dig., iii, 3, 8.

[136] Gaius, i, 137.

[137] Frag. iur. Rom. Vat., 325; id., 327 (from Papinian): mulieres quoque et sine tutoris auctoritate procuratorem facere posse.

[138] Ulpian in Dig., iii, 3, 8; ibid., Paulus, iii, 3, 41.

[139] Ulpian in Dig., iii, 5, 3.

[140] Pomponius in Dig., 48, 2, 1; ibid., Papinian, 48, 2, 2—who adds that she could also do so in a case regarding the will of a mother or father's freedman.

[141] Marcianus in Dig., 48, 2, 13.

[142] Papinian in Dig., 48, 4, 8.

[143] Juvenal, vi, 242—245.

[144] Valerius Maximus, viii, 3, 3. Appian, B.C., iv, 32 ff. Quintilian, i, 1, 6.

[145] Valerius Maximus, viii, 3, 2.

[146] Quintilian, ix, 2, 20 and 34.

[147] E.g., Pliny Letters, i, 5, and iv, 17.

[148] E.g., Huschke, pp. 796, 797, 803, 807, 809, 810, 856, 857, 858. Or instances such as that mentioned in Digest, 48, 2, 18, where a sister brings an action to prove her brother's will a forgery.

[149] Pliny, Letters, vi, 33.

[150] Paulus in Dig., 22, 6, 9.

[151] Fully treated in Dig., 16, 1, and Paulus, ii, xi.

[152] Ulpian in Dig., 16, 1, 2.

[153] Aulus Gellius, xvii, 6. St. Augustine, de Civit. Dei, iii, 21: nam tunc, id est inter secundum et postremum bellum Carthaginiense, lata est etiam illa lex Voconis, ne quis heredem feminam faceret, nec unicam filiam.

[154] Dio, 56, 10.

[155] Aulus Gellius, xx, 1, 23. According to Dio, 56, 10, it was Augustus who in the year 9 A.D. gave women permission to inherit any amount.

[156] Fully treated in Dig., 35, 2. Also in Gaius, ii, 227, and Paulus, iii, viii, 1-3, and iv, 3, 3, and 5 and 6.

[157] Paulus, iv, Tit. v, 1. Cases in which "Complaints of Undutiful Will" were the issue will be found, e.g., in Codex, iii, 28, 1 and 19 and 28; id., iii, 29, 1 and 7.

[158] Ulpian in Dig., 38, 16, 1: suos heredes accipere debemus filios filias sive naturales sive adoptivos. Instances of daughters being left heiresses of whole estates may be found, e.g., in Dig., 28, 2, 19: cum quidam filiam ex asse heredem scripsisset filioque, quem in potestate habebat, decem legasset, etc. Or the example mentioned by Scaevola in Dig., 41, 9, 3: Duae filiae intestato patri heres exstiterunt, etc.

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