IV.
In the age of Cæsar, the Roman family is no longer what it was at first. Laws, usages, ideas, all are changed; and everything is moving onward to a still more radical transformation. The jus gentium seems to have become identical with the more rigorous jus civile. The fideicommissum has almost the force of a testament in solemn form, and has become part, as it were, of the jus civile; verbal contract, the ancient stipulatio, once so hampered by formulas, is grown so flexible as to resemble a contract under the jus gentium. But the greatest change of all has taken place in the family. The domestic hearth is no longer the household sanctuary. The Atrium is transformed into an open courtyard, enlivened with flowers and limpid fountains, ornamented with gilded busts and statues, often of an obscene character. Sacrifices are no longer offered there to the gods amid the stillness and purity of domestic and religious affection; it now serves the enriched and corrupt patrician as a place of reception for his numerous friends and clients. The family of former days, once almost a State within the State, is now dissolved, and, as it were, swallowed up by the political power. The agnates no longer cleave together, the domestic tribunal has either lost its strength or has entirely disappeared. Paternal authority, though less absolute, is more oppressive, being no longer in harmony with the changed customs. If a father disinherits his son, the judge cancels the will. Should he refuse consent to his son's marriage, the State compels him to grant it; should he punish his son with death, the emperor sends him into exile; he cannot ill-use even his slaves without being punished by the law, for the law has grown moral as manners become more corrupt. By gradual degrees woman escapes from tutelage, and from manus, and ultimately attains her independence. But the more she is emancipated from her family and relations, the greater becomes her subjection to the State. In her new independence she incurs new disabilities, no longer resulting from her position as daughter or wife, but from the fact of her sex, disabilities no longer imposed in the interest of the family, but created as a protection for her infirmity. This explains how it was that the lawyers of later days were mistaken as to the significance of the old law touching the tutela of woman. The wife's dowry is guaranteed to her more and more strictly, until it finally becomes her almost inseparable property. It must neither be alienated nor diminished. On her becoming a widow, being divorced, or returning to the paternal roof, she remains absolute mistress of it. A husband who surprises his wife in adultery can no longer—hiding his dishonour within his own walls—judge and put her to death with the consent of the domestic tribunal. He must now leave the State to avenge his wrongs, and must resort to the courts, even though seeking only minor penalties. Divorce has become a public act of not unfrequent occurrence. The woman, in short, is no longer under her husband's manus, no longer subject to the patria potestas, no longer under the tutelage of the agnati: she is protected by the State. When the law still requires her to have a tutor or procurator, she can choose a stranger who becomes her servant rather than her master. Eventually even this last shadow of subjection disappears. Absolutely her own mistress, the woman may now hold property, increase her fortune, make her will, lose her virtue; but her dowry, guaranteed and kept intact by law, remains hers to the end of her life.
Nevertheless, as regards succession, the woman's rights are not yet the same as the man's. It is true, that should her father die intestate, she takes an equal share with her brothers of the inheritance; but in all other cases of intestacy the nearest female agnate stands after the most distant male. The woman cannot now do any legal act for others, though this had not been forbidden previously; she cannot be a witness; she cannot stand security for the debts of others. The Senatus-consultum Velleianum lays it down as a fixed rule, which, to a certain extent, has remained in force to our own days—that the woman must not undertake any obligation on behalf of others. She may alienate her possessions in others' favour, may incur a direct obligation, contract a debt, and transfer the money to others; but she cannot bind herself to pay another's debt, nor guarantee its payment. In the legislator's opinion, the infirmity of her sex leaves her enough intelligence to escape danger in assuming direct obligations, or by alienating her property, but not enough to guard her from lightly undertaking remote and indirect liabilities which are often no less serious.
But the progressive changes in the Roman family are not yet at an end. To the numberless causes for change already in existence another is added, when Christianity finds its way into the Empire, into literature and law, and subverts all things. According to the law of Christ, man and woman are equal; father and mother have equal rights and duties in respect of their children, for whose advantage all things must be ordered; whereas, by the old law, the rights of the children were subordinated to the interests of the family. A new element is now introduced into Roman law which further changes its character, already much modified by Greek philosophy and by Byzantine despotism. The Canon law accepts the principles of the Roman, recognises the wife's absolute interest in her marriage portion, and rejects the pretensions of the husband. Woman remains excluded from every office which the ancients deemed proper to man; she cannot enter into obligations for others, nor arbitrate, nor lay an accusation, nor bear witness in court; her evidence has no legal effect. On the other hand, Roman law tends inexorably to democratic equality, natural equity, and to the absolute predominance of the State. The public authority deprives domestic authority of its last remnant of power; it may almost be said that the family, as a body-politic, disappears, to be reconstituted on the footing of reciprocal affection. The final seal to these alterations was imposed by the famous law of succession (Nov. 118 and 127) enacted by Justinian in the years 543 and 547, which, suppressing every privilege of sex and agnation, fixes rights according to the degree of relationship, and makes them reciprocal. It moreover enlarges the amount of the legitim, and ordains that the dowry of the wife should be met by a donatio propter nuptias of equal value from the husband, and that, in the interest of the children, both should be inalienable. Even with the consent of his wife, the husband cannot sell the dowry; he may only administer it, and there must be complete reciprocity. The wife is not only the owner of the dowry, she has besides a general charge over her husband's property for its restitution, with a right of action to enforce it as against all his other creditors. In inheriting from their children the mother has equal right with the father, and she is now qualified to be their guardian. Even the Senatus-consultum Velleianum, which forbade women to incur obligations on behalf of others, is modified with the same scope. Justinian, indeed, from his desire to protect the property of the woman against all danger, is strenuously opposed to her incurring obligations on behalf of her husband; but he is much more indulgent in respect to obligations undertaken on behalf of a stranger. These, if incurred for manifestly good cause, are valid if renewed after two years. Thus modified, the Senatus-consultum Velleianum is treated with respect throughout the Middle Ages. Reciprocal equality is now achieved, but the ancient unity of the family is dissolved; the compact and iron nucleus of Roman society is broken to fragments by the continual and increasing action of the State. In all her institutions, Rome has succeeded in arriving at democracy and equality, but at the cost of complete individual liberty, and by sacrificing the development of special associations and of local life to the unity of the State. How to conciliate these two elements without destroying the one in the interest of the other will be the problem of a new era and a new civilisation.
However highly we may rate the amazing and indisputable greatness of the labours of Imperial legislators and juris-consults collected in the Corpus iuris in the time of Justinian, it is nevertheless certain that the ancient and primitive character of Roman law has been profoundly changed by it, and that the despotism of the State, always prevalent in Rome, has been enormously increased. It is for this reason that Tocqueville, and others with him, go so far as to maintain that the great diffusion of the Justinian law among the Latin races has more than once proved hurtful to political freedom. To many, such an assertion may seem absurd; but granting that there is a close bond of connection between private and public law, and that the final changes in Roman law were introduced by the action of the growing despotism of the State, the opinion advanced by the French writer is not without its value.