Gifts between husband and wife were nevertheless valid under certain conditions. It was permissible to make a present of clothing and to bestow various tokens of affection, such as ornaments. The husband could present his wife with enough money to rebuild a house of hers which had burned.[[75]] The Emperor Marcus Aurelius permitted a wife to give her husband the sum necessary to obtain public office or to become a senator or knight or to give public games.[[76]] A gift was also legal if made by the husband in apprehension that death might soon overtake him; if, for instance, he was very sick or was setting out to war, or to exile, or on a dangerous journey.[[77]] The point in all gifts was, that neither party should become richer by the donation.[[78]]
Some further considerations of the relation of husband and wife will aid in setting forth the high opinion which Roman law entertained of marriage and its constant effort to protect the wife as much as possible. A wife could not be held in a criminal action if she committed theft against her husband. The various statements of the jurists make the matter clear. Thus Paulus[[79]]: "A special action for the recovery of property removed [rerum amotarum iudicium] has been introduced against her who was a wife, because it has been decided that it is not possible to bring a criminal action for theft against her [quid non placuit cum ea furti agere posse]. Some—as Nerva Cassius—think she cannot even commit theft, on the ground that the partnership in life made her mistress, as it were. Others—like Sabinus and Proculus—hold that the wife can commit theft, just as a daughter may against her father, but that there can be no criminal action by established law." "As a mark of respect to the married state, an action involving disgrace for the wife is refused."[[80]] "Therefore she will be held for theft if she touches the same things after being divorced. So, too, if her slave commits theft, we can sue her on the charge. But it is possible to bring an action for theft even against a wife, if she has stolen from him whose heirs we are or before she married us; nevertheless, as a mark of respect we say that in each case a formal claim for restitution alone is admissible, but not an action for theft."[[81]] "If any one lends help or advice to a wife who is filching the property of her husband, he shall be held for theft. If he commits theft with her, he shall be held for theft, although the woman herself is not held."[[82]]
A husband who did not avenge the murder of his wife lost all claims to her dowry, which was then confiscated to the state; this by order of the Emperor Severus.[[83]]
The laws on adultery are rather more lenient to the woman than to the man. In the first place, the Roman law insisted that it was unfair for a husband to demand chastity on the part of his wife if he himself was guilty of infidelity or did not set her an example of good conduct,[[84]]—a maxim which present day lawyers may reflect upon with profit. A father was permitted to put to death his daughter and her paramour if she was still in his power and if he caught her in the act at his own house or that of his son-in-law; otherwise he could not.[[85]] He must, however, put both man and woman to death at once, when caught in the act; to reserve punishment to a later date was unlawful. The husband was not permitted to kill his wife; he might kill her paramour if the latter was a man of low estate, such as an actor, slave, or freedman, or had been convicted on some criminal charge involving loss of citizenship.[[86]] The reason that the father was given the power which was denied the husband was that the latter's resentment would be more likely to blind his power of judging dispassionately the merits of the case.[[87]] If now the husband forgot himself and slew his wife, he was banished for life if of noble birth, and condemned to perpetual hard labour if of more humble rank.[[88]] He must at once divorce a wife guilty of adultery; otherwise he was punished as a pander, and that meant loss of citizenship.[[89]] Women convicted of adultery were, when not put to death, punished by the loss of half their dowry, a third part of their other goods, and relegation to an island; guilty men suffered the loss of half of their possessions and similar relegation to an island; but the guilty parties were never confined in the same place.[[90]] We have mention also in several writers of some curious and vicious punishments that might be inflicted on men guilty of adultery.[[91]]
Now, all this seems rigorous enough; but, as I have already remarked, we must beware of imagining that a statute is enforced simply because it stands in the code. As a matter of fact, public sentiment had grown so humane in the first three centuries after Christ that it did not for a moment tolerate that a father should kill his daughter, no matter how guilty she was; and in all our records of that period no instance occurs. As to husbands, we have repeated complaints in the literature of the day that they had grown so complaisant towards erring wives that they could not be induced to prosecute them.[[92]] A typical instance is related by Pliny.[[93]] Pliny was summoned by the Emperor Trajan to attend a council where, among other cases, that of a certain Gallitta was discussed. She had married a military tribune and had committed adultery with a common captain (centurio). Trajan sent the captain into exile. The husband took no measures against his wife, but went on living with her. Only by coercion was he finally induced to prosecute. Pliny informs us that the guilty woman had to be condemned, even against the will of her accuser.
A woman guilty of incest received no punishment, but the guilty man was deported to an island.[[94]] If the incest involved adultery, the woman was of course held on that charge.
Divorce
We come now to a matter where the growing freedom of women reached its highest point—the matter of divorce. Here again we have to note the progress of toleration and humanitarianism. In the early days of the Republic the family tie was rarely severed. Valerius Maximus tells us[[95]] of a quaint custom of the olden days, to the effect that "whenever any quarrel arose between husband and wife, they would proceed to the chapel of the goddess Viriplaca ["Reconciler of Husbands">[, which is on the Palatine, and there they would mutually express their feelings; then, laying aside their anger, they returned home reconciled." During these days a woman could never herself take the initiative in divorce; the husband was all-powerful. The first divorce of which we have any record took place in the year 231 B.C., when Spurius Carvilius Ruga put away his wife for sterility. Public opinion censured him severely for it "because people thought that not even the desire for children ought to have been preferred to conjugal fidelity and affection."[[96]] As the Empire extended and Rome became more worldly and corrupt, the reasons for divorce became more trivial. Sempronius Sophus divorced his wife because she had attended some public games without his knowledge.[[97]] Cicero, who was a lofty moralist—on paper,—put away his wife Terentia in order to marry a rich young ward and get her money if he could. Maecenas, the great prime-minister of Augustus, sent away and took back his wife repeatedly at caprice—perhaps he believed that variety is the spice of life. But during all this time the husband alone could annul marriage.[[98]]
Gradually, however, the status of women changed and they were given greater and greater liberty. Inasmuch as Roman marriage was a civil contract based on consent, strict justice had to allow that on this basis either party to the contract might annul the marriage at his or her pleasure. The result was that during the first three centuries after Christ the wife had absolute freedom to take the initiative and send her husband a divorce whenever and for whatever reason she wished. The proof of this fact is positively established not only from the statements of the jurists, but also from numberless accounts in the other writers of the day.[[99]] Divorce became, at least among the higher strata of society, extraordinarily frequent. That a lady of the Upper Four Hundred should have been content with only one husband was deemed worthy of special mention on her tomb; the word univira (a woman of one husband) may still be read on certain inscriptions. The satirists are fond of dwelling on the license allowed to women in the case of divorce. Martial, for instance,[[100]] says that one Theselina married ten husbands in one month. Still, allowing for the natural exaggeration of satirists, we are yet reasonably sure that divorce had reached great heights in the upper classes. Whether it was as bad among the middle classes is very improbable. There was one kind of marriage which, originally at least, did not admit of dissolution.[[101]] This was the solemn marriage by confarreatio, already described, which qualified the husband and wife for the special priesthood of Jupiter. Women soon grew to value their freedom too highly to enter it; as early as 23 A.D. the Senate had to relax some of the rigour of the old laws on the matter as a special inducement for women to consent to enter this union.[[102]]
We may now observe what became of the wife's property after divorce and what her rights were under such circumstances. If it was the husband who had taken the initiative and had sent his wife a divorce, and if the divorce was not the fault of the woman, she at once had an action in law for complete recovery of her dowry; on her own responsibility if she was sui iuris, otherwise with the help of her father.[[103]] But even the woman still under guardianship could act by herself if her father was too sick or infirm or if she had no other agent to act for her.[[104]] For the offence of adultery a husband had to pay back the dowry at once; for lesser guilt he might return it in instalments at intervals of six months.[[105]] If, now, the divorce was clearly the fault of the woman, her husband could retain certain parts of the dowry in these proportions: for adultery, a sixth part for each of the children up to one half of the whole; for lighter offences, an eighth part; if the husband had gone to expense or had incurred civil obligations for his wife's benefit or if she had removed any of his property, he could recover the amount.[[106]]