The Truth About Woman

by C. Gasquoine Hartley

From the earliest notices we have of the Roman women we find them possessed of a definite character of remarkable strength. We often say this or that is a sign of some particular period or people; when nine times out of ten the thing we believe to be strange is in reality common to the progress of life. In Rome the position of woman would seem to have followed in orderly development that cyclic movement so beautifully defined by Havelock Ellis in the quotation I have placed at the beginning of the first section of this chapter.

The patriarchal rule was already strongly established when Roman history opens; it involved the same strict subordination of woman to the one function of child-bearing that we have found in the Athenian custom. The Roman marriage law developed from exactly the same beginning as did the Greek; the woman was the property of her father first and then of her husband. The marriage ceremony might be accomplished by one or two forms, but might also be made valid without any form at all. For in regard to a woman, as in regard to other property, possession or use continued for one year gave the right of ownership to the husband. This marriage without contract or ceremony was called usus.[293] The form confarreatio, or patrician marriage, was a solemn union performed by the high Pontiff of Jupiter in the presence of ten witnesses, in which the essential act was the eating together by both the bride and bridegroom of a cake made of flour, water and salt.[294] The religious ceremony was in no way essential to the marriage. The second and most common form, was called coemptio, or purchase, and was really a formal sale between the father or guardian of the bride and the future husband.[295] Both these forms transferred the woman from the potestas (power) of her father into the manus (hand) of her husband to whom she became as a daughter, having no rights except through him, and no duties except to him. The husband even held the right of life and death over the woman and her children. It depended on his will whether a baby girl were reared or cast out to die—and the latter alternative was no doubt often chosen. As is usual under such conditions, the right of divorce was allowed to the husband and forbidden to the wife. "If you catch your wife," was the law laid down by Cato the Censor, "in an act of infidelity, you would kill her with impunity without a trial; but if she were to catch you she would not venture to touch you with a finger, and, indeed, she has no right." It is true that divorce was not frequent.[296] Monogamy was strictly enforced. At no period of Roman history are there any traces of polygamy or concubinage.[297] But such strictness of the moral code seems to have been barren in its benefit to women. The terrible right of manus was vested in the husband and gave him complete power of correction over the wife. In grave cases the family tribunal had to be consulted. "Slaves and women," says Mommsen, "were not reckoned as being properly members of the community," and for this reason any criminal act committed by them was judged not openly by the State, but by the male members of the woman's family. The legal right of the husband to beat his wife was openly recognised. Thus Egnatius was praised when, surprising his wife in the act of tasting wine,[298] he beat her to death. And St. Monica consoles certain wives, whose faces bore the mark of marital brutality, by saying to them: "Take care to control your tongues.... It is the duty of servants to obey their masters ... you have made a contract of servitude."[299] Such was the marriage law in the early days of Rome's history.

Now it followed almost necessarily that under such arbitrary regulations of the sexual relationship some way of escape should be sought. We have seen how the Athenian husbands found relief from the restrictions of legal marriage with the free hetairæ. But in Rome the development of the freedom of love, with the corresponding advancement of the position of woman, followed a different course. The stranger-woman never attained a prominent place in Roman society. It is the citizen-women alone who are conspicuous in history. Here, relief was gained for the Roman wives as well as for the husbands, by what we may call a clever escape from marriage under the right of the husband's manus. This is so important that I must ask the reader deeply to consider it. The ideal of equality and fellowship between women and men in marriage can be realised only among a people who are sufficiently civilised to understand the necessity for the development and modification of legal restrictions that have become outworn and useless. Wherever the laws relating to marriage and divorce are arbitrary and unchanging there woman, as the weaker partner, will be found to remain in servitude. It can never be through the strengthening of moral prohibitions, but only by their modification to suit the growing needs of society that freedom will come to women.

The history of the development of marriage in Rome illustrates this very forcibly. Even in the days of the Twelve Tables a wholly different and free union had begun to take the place of the legally recognised marriage forms. It was developed from the early marriage by usus. We have seen that this marriage depended on the cohabitation of the man and the woman continued for one year, which gave the right of ownership to the husband in exactly the same way as possession for a year gave the right over others' property. But in Rome, if the enjoyment of property was broken for any period during the year, no title to it arose out of the usufruct. This idea was cleverly applied to marriage by usus. The wife by passing three nights in the year out of the conjugal domicile broke the manus of the husband and did not become his property.

When, or how, it became a custom to convert this breach of cohabitation into a system and establish a form of marriage, which entirely freed the wife from the manus of the husband, we do not know. What is certain is that this new form of free marriage by consent rapidly replaced the older forms of the coemptio, and even the solemn confarreatio of the patricians.

It will be readily seen that this expansion of marriage produced a revolution in the position of woman. The bride now remained a member of her own family, and though nominally under the control of her father or guardian, she was for all purposes practically free, having complete control over her own property, and was, in fact, her own mistress.

The law of divorce evolved rapidly, and the changes were wholly in favour of women. Marriage was now a private contract, of which the basis was consent; and, being a contract, it could be dissolved for any reason, with no shame attached to the dissolution, provided it was carried out with the due legal form, in the presence of competent witnesses. Both parties had equal liberty of divorce, only with certain pecuniary disadvantages, connected with the forfeiting of the wife's dowry, for the husband whose fault led to the divorce.[300] It was expressly stated that the husband had no right to demand fidelity from his wife unless he practised the same himself. "Such a system," says Havelock Ellis, "is obviously more in harmony with modern civilised feeling than any system that has ever been set up in Christendom."[301]

Monogamy remained imperative. The husband was bound to support the wife adequately, to consult her interests and to avenge any insult inflicted upon her, and it is expressly stated by the jurist Gaius that the wife might bring an action for damages against her husband for ill-treatment.[302] The woman retained complete control of her dowry and personal property. A Roman jurist lays it down that it is a good thing that women should be dowered, as it is desirable they should replenish the State with children. Another instance of the constant solicitude of the Roman law to protect the wife is seen in the fact that even if a wife stole from her husband, no criminal action could be brought against her. All crimes against women were punished with a heavy hand much more severely than in modern times.

Women gained increasingly greater liberty until at last they obtained complete freedom. This fact is stated by Havelock Ellis, whose remarks on this point I will quote.

"Nothing is more certain than that the status of women in Rome rose with the rise of civilisation exactly in the same way as in Babylon and in Egypt. In the case of Rome, however, the growing refinement of civilisation and the expansion of the Empire were associated with the magnificent development of the system of Roman law, which in its final forms consecrated the position of women. In the last days of the Republic women already began to attain the same legal level as men, and later the great Antonine jurisconsults, guided by their theory of natural law, reached the conception of the equality of the sexes as the principle of the code of equity. The patriarchal subordination of women fell into complete discredit, and this continued until, in the days of Justinian, under the influence of Christianity the position of women began to suffer."[303]