From these considerations it is clear that the woman's wishes were supreme in the conduct of any suit. Moreover, the law expressly states that women may appoint whatever attorneys or agents they desire, without asking the consent of their legal guardians[[137]]; and thus they were at liberty to select a man who would manage things as they might direct. There were cases where even the strict letter of the law permitted women to lay an action on their own responsibility alone: if, when a suit for recovery of dowry was brought, the father was absent or hindered by infirmities[[138]]; if the woman sued or was sued to get or render an account of property managed in trust[[139]]; to avenge the death of a parent or children, or of patron or patroness and their children[[140]]; to lay bare any matter pertaining to the public grain supply[[141]]; and to disclose cases of treason.[[142]]
Instances of women pleading in public and suing.
We read of many cases of women pleading publicly and bringing suit. Indeed, according to Juvenal—who is, however, a pessimist by profession—the ladies found legal proceedings so interesting that bringing suit became a passion with them as strong as it had once been among the Athenians. Thus Juvenal[[143]]: "There is almost no case in which a woman wouldn't bring suit. Manilia prosecutes, when she isn't a defendant. They draw up briefs quite by themselves, and are ready to cite principles and authorities to Celsus [[144]] We hear also of a certain Gaia Afrania, wife of a Senator; she always conducted her case herself before the supreme judge, "not because there was any lack of lawyers," adds her respectable and scandalised historian,[[145]] "but because she had more than enough of impudence."
Quintilian mentions several cases of women being sued[[146]]; Pliny tells how he acted as attorney for some[[147]]; and the Law Books will supply any one curious in the matter with abundant examples.[[148]] A quotation from Pliny[[149]] will give an idea of the kind of suit a woman might bring, and the great interest aroused thereby: "Attia Viriola, a woman of illustrious birth and married to a former supreme judge, was disinherited by her eighty-year-old father within eleven days after he had brought Attia a stepmother. Attia was trying to regain her share of her father's estate. One hundred and eighty jurors sat in judgment. The tribunal was crowded, and from the higher part of the court both men and women strained over the railings in their eagerness to hear (which was difficult), and to see (which was easy)."
Partiality of the law to women.
There were many legal qualifications designed to help women evade the strict letter of the law when this, if enforced absolutely, would work injustice. Ignorance of the law, if there was no criminal offence involving good morals, was particularly accepted in the case of women "on account of the weakness of the sex."[[150]] A typical instance of the growth of the desire to help women, protect them as much as possible, and stretch the laws in their favour, may be taken from the senatorial decree known as the Senatus Consultum Velleianum.[[151]] This was an order forbidding females to become sureties or defendants for any one in a contract. But at the end of the first century of our era the Senate voted that the law be emended to help women and to give them special privileges in every class of contract. "We must praise the farsightedness of that illustrious order," comments the great jurist Ulpian,[[152]] "because it brought aid to women on account of the weakness of the sex, exposed, as it is, to many mishaps of this sort."
Rights of women to inherit.
The rights of women to inherit under Roman law deserve some mention. Here again we may note a steady growth of justice. Some general examples will make this clearer, before I treat of the specific powers of inheritance. I.—In the year 169 B.C. the Tribune Quintus Voconius Saxa had a law passed which restricted greatly the rights of women to inherit.[[153]] According to Dio[[154]] no woman was, by this statute, permitted to receive more than 25,000 sesterces—1250 dollars. In the second century after Christ, this law had fallen into complete desuetude.[[155]] II.—By the Falcidian Law, passed in the latter part of the first century B.C., no citizen was allowed to divert more than three fourths of his estate from his natural heirs.[[156]] The Romans felt strongly against any man who disinherited his children without very good reason; the will of such a parent was called inofficiosum, "made without a proper feeling of duty," and the disinherited children had an action at law to recover their proper share.[[157]] A daughter was considered a natural heir no less than a son and had equal privileges in succession[[158]]; and so women were bound to receive some inheritance at least. III.—It is a sad commentary on Christian rulers that for many ages they allowed the crimes of the father to be visited upon his children and by their bills of attainder confiscated to the state the goods of condemned offenders. Now, the Roman law stated positively that "the crime or punishment of a father can inflict no stigma on his child."[[159]] So far as the goods of the father were concerned, the property of three kinds of criminals escheated to the crown: (1) those who committed suicide while under indictment for some crime,[[160]] (2) forgers,[[161]] (3) those guilty of high treason[[162]]. Yet it seems reasonable to doubt whether these laws were very often carried out strictly to the letter. For example, the law did indeed hold that the estate of a party guilty of treason was confiscated to the state[[163]]; but even here it was expressly ordained that the goods of the condemned man's freedmen be reserved for his children.[[164]] Moreover, in actual practice we can find few instances where the law was executed in its literal severity even under the worst tyrants. It was Julius Caesar who first set the splendid example of allowing to the children of his dead foes full enjoyment of their patrimonies.[[165]] Succeeding emperors followed the precedent.[[166]] Tyrants like Tiberius and Nero, strangely enough, in a majority of cases overruled the Senate when it proposed to confiscate the goods of those condemned for treason, and allowed the children a large part or all of the paternal estate.[[167]] Hadrian gave the children of proscribed offenders the twelfth part of their father's goods.[[168]] Antoninus Pius gave them all.[[169]] There was a strong public feeling against bills of attainder and this sentiment is voiced by all writers of the Empire. The law forbade wives to suffer any loss for any fault of their husbands.[[170]]
Since we have now noticed that women could inherit any amount, that they were bound to receive something under their fathers' wills, and that the guilt of their kin could inflict no prejudice upon them in the way of bills of attainder involving physical injury or civil status and, in practice, little loss so far as inheriting property was concerned, we may pass to a contemplation of the specific legal rights of inheritance of women.
If women were to be disinherited, it was sufficient to mention them in an aggregate; but males must be mentioned specifically.[[171]] If, however, they were disinherited in an aggregate (inter ceteros), some legacy had to be left them that they might not seem to have been passed over through forgetfulness.[[172]] I shall not concern myself particularly with testate succession, because here obviously the will of the testator could dispose as he wished, except in so far as he was limited by the Falcidian Law. The matter of intestate succession may well claim our attention; for therein we shall see what powers of inheritance were given the female sex. The general principles are explained by Gaius (iii, 1-38); and these principles followed, in the main, the law as laid down in the Twelve Tables (451 B.C.). According to these, the estates of those who died intestate belonged first of all to the children who were in the power of the deceased at the time of his death; there was no distinction of sex; the daughters were entitled to precisely the same amount as the sons.[[173]] If the children of the testator had died, the grandson or granddaughter through the son succeeded; or the great-grandson or great-granddaughter through the grandson. If a son a daughter were alive, as well as grandsons and granddaughters through the son, they were all equally called to the estate. The estate was not divided per capita, but among families as a whole; for example, if of two sons one only was alive, but the other had left children, the testator's surviving son received one half of the patrimony and his grandchildren through his other son the other half, to be divided among them severally. If, then, there were six grandchildren, each received one twelfth of the estate.