[CHAPTER V]
ROMAN LAW, ROMAN WOMEN, AND CHRISTIANITY
The far-reaching results of the various schools of philosophy which rose in Greece during the Periclean age will be noted in this chapter. That the principles involved in this philosophy may not have been formulated by the hetairai of Athens is doubtless true, yet that the inception and development of these principles were largely due to the freedom of these gifted women seems probable, especially when we remember the conditions under which this philosophy arose.
A glance at the principles involved in the Stoic philosophy will show its thoroughly altruistic character. The sum of its tenets was to “live according to nature’s laws,” to subordinate one’s self to the welfare of one’s family, one’s country, and the entire race, and to “rise above the gross indulgences and pleasures of the vulgar” to higher laws of thought and action; it taught that to be just, and to live according to the dictates of reason rather than to be governed by the promptings of blind passion and the desire of the appetites, should be not only the duty but the highest pleasure of mankind. Possibly some of the minor precepts of the Stoic philosophy were absurd; no doubt in their desire for reform, its founders set up a canon of conduct which was severe and impracticable; but its fundamental principles, the subjection of the animal in man to the reasoning faculties, as applied to future Roman law, Roman civilization, and Roman character, served to produce specimens of manhood which the women of all subsequent ages should delight to honour. So long as virtue is applauded and moral greatness is exalted, the enactments of the Roman jurisconsults in the interest of women, prior to, and during the time of the Antonine Cæsars, will stand forth throughout the ages as the one single movement, during thousands of years, toward the removal of the legal disabilities of women. When we remember that the Stoic philosophy took root and flourished during an age of unparalleled profligacy which was stimulated and encouraged by the example of the most opulent and luxurious personages among the Greeks, and at a time when licentiousness had for centuries been sanctioned by religion and upheld by laws made by the men of Greece, it is quite evident that some potent influence, which had hitherto been unfelt, had been in operation to produce it.
In order to understand the influence which the Stoic philosophy exerted on civilization, and especially on the legal position of women, we must first understand its effect upon Roman law. An inquiry into the changes which had been wrought in Roman jurisprudence at the time of the Antonine Cæsars, by engrafting upon it the underlying principles contained in the Stoic philosophy, discloses the fact that the emancipation of women had been practically accomplished in Rome.
Perhaps there is no subject which at the present time possesses greater interest for inquiring women than that concerning the status of their sex under the older Roman law; for, by an understanding of woman’s legal status, as fixed under this institution at a time when man had gained the summit of his power over her, is furnished a key whereby may be unlocked many of the mysteries surrounding the still extant social and legal disabilities of women.
The thoroughly egoistic character of the principles underlying the older Roman law has been noticed in a former portion of this work. We have seen that in Rome the father, who was the sole representative of the family, had drawn to himself not only all the authority over the child which under the earlier gentile organization of society had been acknowledged as belonging exclusively to the mother, but, ignoring individual liberty, and all the principles of personal freedom which had been established under the matriarchal system, had proclaimed himself absolute sovereign over all within the agnatic bond. The divine oracle of Apollo, which had enunciated the doctrine that the soul of the child is derived from the father, had at the same time declared that the mother has to do only with furnishing the body. Thus the father, as Creator, became the household god; his authority, as we have seen, being supreme even to the exercise of the power of life and death over its members.
Under ancient law, the father, as head of the household, really constituted the family, the remaining members being merely ciphers which, from the peculiar position in which they were placed, were without significance except as vassals under the strictest tutelage of their master. Under this august system of father-worship, males as well as females had become enslaved. The bondage of men, however, differed somewhat from the “perpetual tutelage of women,” in the fact that they themselves in time might become heads of families, and in that imperial position to assume the same authority and dominion over others as had been exercised over them. Women, however, could never become heads of families, and therefore could never hope to be free. So long as they remained single they were under the tutelage of their blood-relations, or were subject to the authority of some individual whom the father, before his death, might choose to appoint over them as guardian. Thus arose the law known as the Perpetual Tutelage of Women. Upon this subject Sir Henry Maine says:
Ancient law subordinates the woman to her blood-relations, while a prime phenomenon of modern jurisprudence has been her subordination to her husband. The history of the change is remarkable. It begins far back in the annals of Rome. Anciently, there were three modes in which marriage might be contracted according to Roman usage, one involving a religious solemnity, the other two the observance of certain secular formalities. By the religious marriage of Confarreation; by the higher form of civil marriage, which was called Coemption; and by the lower form, which was termed Usus, the husband acquired a number of rights over the person and property of his wife, which were on the whole in excess of such as are conferred on him in any system of modern jurisprudence. But in what capacity did he acquire them? Not as Husband, but as Father. By the Confarreation, Coemption, and Usus, the woman passed in manum viri—that is, in law she became the Daughter of her husband. She was included in his Patria Potestas. She incurred all the liabilities springing out of it while it subsisted, and surviving it when it had expired. All her property became absolutely his and she was retained in tutelage after his death to the guardian whom he had appointed by will.[255]
On this subject of male supremacy in the family Mr. Maine remarks: