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]]
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.
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]]
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]).