CHAPTER I
WOMEN'S RIGHTS UNDER ROMAN LAW, FROM AUGUSTUS TO JUSTINIAN—27 B.C. TO 527 A.D.
Guardianship.
The age of legal capability for the Roman woman was after the twelfth year, at which period she was permitted to make a will.[[1]] However, she was by no means allowed to do so entirely on her own account, but only under supervision.[[2]] This superintendence was vested in the father or, if he was dead, in a guardian[[3]]; if the woman was married, the power belonged to the husband. The consent of such supervision, whether of father, husband, or guardian, was essential, as Ulpian informs us,[[4]] under these circumstances: if the woman entered into any legal action, obligation, or civil contract; if she wished her freedwoman to cohabit with another's slave; if she desired to free a slave; if she sold any things mancipi, that is, such as estates on Italian soil, houses, rights of road or aqueduct, slaves, and beasts of burden. Throughout her life a woman was supposed to remain absolutely under the power[[5]] of father, husband, or guardian, and to do nothing without their consent. In ancient times, indeed, this authority was so great that the father and husband could, after calling a family council, put the woman to death without public trial.[[6]] The reason that women were so subjected to guardianship was "on account of their unsteadiness of character,"[[7]] "the weakness of the sex," and their "ignorance of legal matters."[[8]] Under certain circumstances, however, women became sui iuris or entirely independent: I. By the birth of three children (a freedwoman by four)[[9]]; II. By becoming a Vestal Virgin, of whom there were but six[[10]]; III. By a formal emancipation, which took place rarely, and then often only with a view of transferring the power from one guardian to another.[[11]] Even when sui iuris a woman could not acquire power over any one, not even over her own children[[12]]; for these an agnate—a male relative on the father's side—was appointed guardian, and the mother was obliged to render him and her children an account of any property which she had managed for them.[[13]] On the other hand, her children were bound to support her.[[14]]
Digression on the growth of respect for women
So much for the laws on the subject. They seem rigorous enough, and in early times were doubtless executed with strictness. A marked feature, however, of the Roman character, a peculiarity which at once strikes the student of their history as compared with that of the Greeks, was their great respect for the home and the materfamilias. The stories of Lucretia, Cloelia, Virginia, Cornelia, Arria, and the like, familiar to every Roman schoolboy, must have raised greatly the esteem in which women were held. As Rome became a world power, the Romans likewise grew in breadth of view, in equity, and in tolerance. The political influence wielded by women[[15]] was as great during the first three centuries after Christ as it has ever been at any period of the world's history; and the powers of a Livia, an Agrippina, a Plotina, did not fail to show pointedly what a woman could do. In the early days of the Republic women who touched wine were severely punished and male relatives were accustomed solemnly to kiss them, if haply they might discover the odour of drink on their breath.[[16]] Valerius Maximus tells us that Egnatius Mecenas, a Roman knight, beat his wife to death for drinking wine.[[17]] Cato the Censor (234-149 B.C.) dilated with joy on the fact that a woman could be condemned to death by her husband for adultery without a public trial, whereas men were allowed any number of infidelities without censure.[[18]] The senator Metellus (131 B.C.) lamented that Nature had made it necessary to have women.[[19]]
The boorish cynicism of a Cato and a Metellus—though it never expressed the real feelings of the majority of Romans—gave way, however, under the Empire to a generous expression of the equality of the sexes in the realms of morality and of intellect. "I know what you may say," writes Seneca to Marcia,[[20]] "'You have forgotten that you are consoling a woman; you cite examples of fortitude on the part of men.' But who said that Nature had acted scurvily with the characters of women and had contracted their virtues into a narrow sphere? Equal force, believe me, is possessed by them; equal capability for what is honorable, if they so wish." The Emperor Marcus Aurelius gratefully recalls that from his mother he learned piety and generosity, and to refrain not only from doing ill, but even from thinking it, and simplicity of life, far removed from the ostentatious display of wealth.[[21]] The passionate attachment of men like Quintilian and Pliny to their wives exhibits an equality based on love that would do honour to the most Christian households.[[22]] All Roman historians speak with great admiration of the many heroic deeds performed by women and are fond of citing conspicuous examples of conjugal affection.[[23]] The masterly and sympathetic delineation of Dido in the Aeneid shows how deeply a Roman could appreciate the character of a noble woman. In the numerous provisions for the public education at the state's expense girls were given the same opportunities and privileges as boys; there were five thousand boys and girls educated by Trajan alone.[[24]]
Decay of the power or the guardian.
Such are a few examples of the growth of respect for women; and we should naturally conclude that, as time progressed, the unjust laws of guardianship would no longer be executed to the letter, even though the hard statutes were not formally expunged. This was the case during the first three centuries after Christ, as is patent from many sources. It is to be borne in mind that because a law is on the books, does not mean necessarily that it is enforced. A law is no stronger than public opinion. Of this anomaly there are plenty of instances even to-day—the Blue Laws of Massachusetts, for example. "That women of mature age should be under guardianship," writes the great jurist Gaius[[25]] in the second century, "seems to have no valid reason as foundation. For what is commonly believed, to the effect that on account of unsteadiness of character they are generally hoodwinked, and that, therefore, it is right for them to be governed by the authority of a guardian, seems rather specious than true. As a matter of fact, women of mature age do manage their own affairs, and in certain cases the guardian interposes his authority as a mere formality; frequently, indeed, he is forced by the supreme judge to lend his authority against his will." Ulpian, too, hints at the really slight power of the guardian in his day, that is, the first three decades of the third century. "In the case of male and female wards under age, the guardians both manage their affairs and interpose their authority; but in the case of mature women they merely interpose their authority."[[26]] The woman had, in practice, become free to manage her property as she wished; the function of the legal guardian was simply to see to it that no one should attempt a fraud against her. Adequately to observe the decay of the vassalage of women, we must investigate the story of their rights in all its forms; and the position of women in marriage will next occupy our attention.
Women and marriage.