The foundation of Agnation is not the marriage of Father and Mother, but the authority of the Father. All persons are Agnatically bound together who are under the same Paternal Power, or who have been under it, or who might have been under it if their lineal ancestor had lived long enough to exercise his empire.[256]
Under this bond would be united all the children belonging to the head of the household and all the descendants of the sons, but not of the daughters; the daughters’ children under this manner of reckoning descent belonged to the families of their respective fathers. Although under this system a man might adopt a stranger into his family, and invest him with all the rights and privileges appertaining thereunto, no descendant of a daughter could claim any of the rights of agnation. Under Hindu law, which is saturated with the primitive notions of family dependency, in the genealogies, the names of women are omitted altogether. We are assured by Mr. Maine that the exclusion of women from governmental functions certainly had its origin in agnation. Thus it is seen that paternity had come to involve the idea of a supreme ruler or potentate, and that the overshadowing predominance of the male over the female had paved the way to the future worship of one all-powerful male deity.
We have seen that the principles involved in the Stoic philosophy were justice, equality, and the subjection of the appetites to the dictates of reason and conscience. So soon as Greece was subjugated by Rome, the ablest of the Romans espoused the principles embodied in this philosophy, and notably among those who became interested in its tenets were the Roman lawyers, who began immediately to reconstruct the civil law upon the principles underlying this system.
That it is only through a return to the archaic and natural principles of justice and right living, the acknowledgment of which at once establishes the proper relations of the sexes, that women may ever hope to be free, is plain to all those who have given attention to this subject. This fact was evidently observed by the Roman lawyers who, through the persistency with which only those labour who are engaged in establishing a principle, had so far succeeded in overcoming the prejudice against sex as to have established a legal code wherein was practically recognized the equality of women with men.
Doubtless the Romans were as tenacious of their ancient customs, prejudices, and long-established privileges as have been the people of any other country; hence we may perhaps form a faint idea of the obstacles which presented themselves, and of the devices which must have been resorted to by Roman jurists in an endeavour to remove the existing legal restrictions upon the liberties of women.
Mr. Maine informs us that Gaius, a celebrated jurist who lived in the age of the Antonine Cæsars, devoted an entire volume to descriptions of the ingenious expedients devised by Roman lawyers to evade the letter of the ancient law, and that it was through this source that the fact finally became known that in the age of the Antonine Cæsars the legal disabilities of women had been practically annulled.
From the facts at hand it is observed that the object of the Roman lawyers was to frame an edictal jurisprudence which should supersede the older law, or which in effect should annul its power. We are informed that the prætor was not only the chief equity judge, but that he was also the common-law magistrate. So soon, therefore, as the edict had passed through the necessary formalities enabling it to become a law, the prætor’s court began to apply it in place, or by the side of the civil law, “which was directly or indirectly repealed without any express enactment of legislation.” In reference to the legal status of women in the age of the Antonine Cæsars, Henry Maine observes: “Led by their theory of natural law, the jurisconsults had at this time assumed the equality of the sexes as a principle of their code of equity.”[257]
Although the seed, sown in Greece during the Periclean age when conveyed to Rome, produced a golden harvest, the fact will doubtless be remembered that the Roman lawyers had but just completed their work of establishing the legal equality of the sexes when the agencies which for years had been at work to destroy the Empire culminated; and finally, when Christianity, in the person of Constantine ascended the throne, the results of four centuries of civilization were destroyed, or for more than sixteen hundred years were practically annulled.
Regarding the changes which had been wrought in the legal status of women in the age of the Antonine Cæsars, we are informed that whereas under the older Roman law a woman at marriage came under the Patria Potestas of her husband, under the later law, as influenced by the principles involved in the Stoic philosophy, she remained as a member of her own family, or was placed under the protection of a guardian appointed by her parents, whose jurisdiction over her, although superior to that of her husband, was not such as to interfere with her personal liberty; thus, the same as under matriarchal usages, the situation of the Roman woman, whether married or single, was one of great influence. Of this freedom exercised by women in the time of the Antonine Cæsars, Mr. Maine remarks:
But Christianity tended somewhat from the very first to narrow this remarkable liberty.... The latest Roman Law, so far as it is touched by the Constitutions of the Christian Emperors, bears some marks of a reaction against the liberal doctrines of the great Antonine jurisconsults. And the prevalent state of religious sentiment may explain why it is that modern jurisprudence, forged in the furnace of barbarian conquest, and formed by the fusion of Roman jurisprudence with patriarchal usage, has absorbed, among its rudiments, much more than usual of those rules concerning the position of women which belong peculiarly to an imperfect civilization.[258]