But at a later date customs grew corrupt, and no longer sufficed to protect public good faith and morality, which were driven to seek asylum and sanction in the law, and so began gradually to modify its primitive character. Substance now prevailed over form, equity over the ancient text of the law, the intention of the contracting parties over words uttered by mistake; the law became more moral as customs grew more degraded. This transformation, though very gradual at the beginning, was afterward, accelerated by the new conditions of the Republics in which a change took place not unlike that occurring in the history of jurisprudence, towards the beginning of the seventeenth century. At that time the various European States, with their various systems of law, having contracted new relations with one another, came to recognise the necessity of establishing some fixed rules by which all should be bound, and thus, under the auspices of Hugh Grotius, the so-called School of Natural Law was built up. The same occurred in Rome, if not in the science, at any rate in the practice of law. As the dominion of the Republic became extended in Italy, its relations increased with neighbouring nations, among whom the more philosophical and less severe laws and principles of the Greek jurisprudence prevailed. It was impossible to impose upon all these nations, without modification, the rigid law of the Roman patriciate. Accordingly a new system of law, of a simpler character and wider reach, took shape and rapidly grew. This was named the jus gentium, to distinguish it from the other, the jus civile. "Jus gentium est quod naturalis ratio inter omnes homines constituit." This system, however, was not deduced from philosophic theories concerning human nature, as was the, appropriately styled, natural law of the eighteenth century; it originated in the practical needs of the Romans and their new relations with other Italian peoples: it was fostered by the principles of Greek jurisprudence that had been transplanted into Southern Italy; it met the new requirements of the Romans themselves; and taking the place that custom had previously filled in the Roman courts, grew side by side with the law of the Patricians with which it long maintained its union.
There were thus two systems of law in force in Rome; and we accordingly find on the one hand judges and courts faithful to the ancient formalism, on the other, judges and courts taking cognizance of equity and good faith, and almost discharging the duties of the Censor. The continuous onward progress of the jus gentium, the reciprocal action of the two legal systems ultimately fusing them into one, wherein the old Roman formation gradually lost its rigidity, and equity, becoming incorporated with the civil law, began to assume a more definite and regular form, were all consequences of the principle which dominates the life and history of the Roman law, and may even be said to constitute it. For it has been moulded and diffused through the world, inheriting from the old Quirites its frame of iron; from contact with other races and from such germs as it could assimilate of Greek civilisation, its more comprehensive and human spirit. Assuming thus a character at once exact and philosophical, it seemed as though destined to become, from its superiority, the universal jurisprudence, the indispensable foundation, as it were, of all future legislation. This union of legal systems was effected by the Prætor. He it was who represented both the modern spirit and the ancient, enlarging the old law with the defences of equity which he strengthened by submitting it to the trammels of a formal procedure. This in substance was what took place with regard to customs, letters, and everything else. The fusion of Greek civilisation with the Roman constitutes the history of the ancient world.
III.
As is natural, we also meet with the same phenomena in the history of the family, from which the civil law is to a great extent derived. In fact, whoever contemplates the primitive Roman family, at once recognises it as the basis upon which the future juridical and political greatness of Rome was erected. The family is sacred; the father is absolute master of the goods, the liberty and the life both of his wife and of his children. He is priest, judge, supreme arbiter: wife, children, and grandchildren form with him a single joint society, one legal entity of which he is the representative. The woman may be bartered away, killed, or sold in execution; freed by marriage from the despotic control of her father, she at once falls under that of her husband; her legal incapacity lasts through her whole life. But primitive customs so temper this harsh law that we find no other people of antiquity so observant of the sanctity of family, or showing so much respect to woman. Matrimony is styled "consortium omnis vitæ, divini et humani iuris communicatio." Divorce on the part of the husband (repudium) is not forbidden by law, but any man who repudiates his wife is dishonoured by the Censor, excommunicated by the priest, and for a period of five centuries few cases of repudiation are recorded. In ancient Greece some traces of oriental polygamy are still discernible, but in Italy monogamy is coeval with Rome itself. Natural children, as such, never rank as members of the family, but they may be legitimated. Adoption is a solemn act, the moral propriety of which is referred to the decision of the pontifex, as the guardian of the sanctity of the family, and is thus submitted to the popular sanction. The woman is never seen in places of public resort, nor does she attend popular gathering; but within doors she is domina, and the husband addresses her by that title. The Atrium is the centre and sanctuary of the house. Here relations, friends, and strangers meet together; here stand the domestic hearth, the altar dedicated to the Lares, and all those objects which the family holds sacred: the nuptial coach, the ancestral likenesses moulded in wax from the faces of the dead, the matron's rock and spindle, the chest containing the household records and monies. All these possessions are entrusted to the care and superintendence of the mother of the family, who, together with her husband, sacrifices to the gods and assists him in the management of the common patrimony: she directs all domestic work, and watches over the education of her children. In the annals and legends of Rome the name of some heroine, such as Virginia or Lucretia, is indissolubly linked with the chief glories of the Eternal City. It is not so in Greece. In instituting and sanctifying the family, the Romans laid the foundation-stone of the Capitol. But to maintain this primitive nucleus of Roman society firm and compact, the law must always watch with vigilance and multiply its ordinances. The property of the family must be kept together as strictly as possible and for the longest possible time. The father is its sole master and arbiter; but on his death the patrimony is equally divided between sons and daughters. The unity of the family must also be guarded and defended by the law, since there is serious danger that a woman marrying may carry away from the family an interest in the family property. She is accordingly subjected by the law to a perpetual tutelage which prevents her from disposing at will of her own property. On the death of her father the woman comes under the tutelage of the agnati. In Cicero's day, when as Vico has noted, the true significance of primitive Roman law had been lost, lawyers believed that this tutelage of women had been established on account of the weakness of the sex, propter sexus infirmitatem. But Gaius refers to this opinion as a plausible and prevalent error, and maintains that the restriction was instituted in the interest of the agnati, so that the woman, whose presumptive heirs they were, should have no power to alienate, diminish, or otherwise defraud them of their inheritance.[370]
So long as the woman remained under the tutelage of her father, inasmuch as she had not yet inherited, the law allowed her to incur legal obligations. The danger for the family began when, on her father's death, she became an heir. It was from that precise moment, accordingly, that she came under the tutelage of her own heirs the agnati, and could no longer bind herself without their consent. This tutelage, therefore, became not merely a duty on the part of the agnati, but was also a right and privilege. Where the agnate was a minor, of weak mind, or otherwise incapacitated, he did not forfeit this right, but it had to be exercised by a third party. The tutor fixed the dowry to be given with the woman on her marriage; but the remainder of her patrimony had to be preserved intact, that it might return afterwards to the agnati. No woman could make a will, that she might not have it in her power to defraud the family. On passing in manus viri, the woman underwent a capitis diminutio. She entered another family, as it were, loco filiæ, and her new relations became her lawful heirs. Under these circumstances the law permitted her to make a testamentary disposition, whereby, notwithstanding her new relationships, she might restore her patrimony to her own original family.
When the woman was under the manus of her husband, she was emancipated from the paternal authority and from the tutelage of her agnates. The displeasure thereby caused to her own family was so great that, before long, marriage by simple consent was resorted to, according to which the woman became personally subject to her husband's authority, but he had no right of manus over her, and consequently no power over her property. In this way the woman remained under the power of her father or of the agnates, and at the same time came under the authority of her husband, an arrangement that inevitably led to many collisions, and hastened the advent of the most radical change in the Roman family—the complete independence of woman. But, before reaching this point, disputes were for a long time kept in check and efficaciously remedied by the mediating influence of a most important institution—the domestic tribunal. This family council, regulated by usage, not law, was composed of agnates, cognates, relations, and sometimes also of friends. It presided at espousals and at the assumption of the toga virilis; it protected orphans; it aided the head of the family in adjudicating and in awarding punishment, and acted as a restraint on his authority. By law, the father could act even without the co-operation of the Council; but by doing so, he exposed himself to being publicly blamed and noted with ignominy by the Censor, who, if necessary, might accuse him before the people. The marriageable maiden was subject to and protected by this Council.
Becoming a wife by that form of marriage which brought her in manus viri, she left her own family to become member of another; but if not married under that form, she still remained subject to the family Council, in which her husband was now included.
IV.
In the age of Cæsar, the Roman family is no longer what it was at first. Laws, usages, ideas, all are changed; and everything is moving onward to a still more radical transformation. The jus gentium seems to have become identical with the more rigorous jus civile. The fideicommissum has almost the force of a testament in solemn form, and has become part, as it were, of the jus civile; verbal contract, the ancient stipulatio, once so hampered by formulas, is grown so flexible as to resemble a contract under the jus gentium. But the greatest change of all has taken place in the family. The domestic hearth is no longer the household sanctuary. The Atrium is transformed into an open courtyard, enlivened with flowers and limpid fountains, ornamented with gilded busts and statues, often of an obscene character. Sacrifices are no longer offered there to the gods amid the stillness and purity of domestic and religious affection; it now serves the enriched and corrupt patrician as a place of reception for his numerous friends and clients. The family of former days, once almost a State within the State, is now dissolved, and, as it were, swallowed up by the political power. The agnates no longer cleave together, the domestic tribunal has either lost its strength or has entirely disappeared. Paternal authority, though less absolute, is more oppressive, being no longer in harmony with the changed customs. If a father disinherits his son, the judge cancels the will. Should he refuse consent to his son's marriage, the State compels him to grant it; should he punish his son with death, the emperor sends him into exile; he cannot ill-use even his slaves without being punished by the law, for the law has grown moral as manners become more corrupt. By gradual degrees woman escapes from tutelage, and from manus, and ultimately attains her independence. But the more she is emancipated from her family and relations, the greater becomes her subjection to the State. In her new independence she incurs new disabilities, no longer resulting from her position as daughter or wife, but from the fact of her sex, disabilities no longer imposed in the interest of the family, but created as a protection for her infirmity. This explains how it was that the lawyers of later days were mistaken as to the significance of the old law touching the tutela of woman. The wife's dowry is guaranteed to her more and more strictly, until it finally becomes her almost inseparable property. It must neither be alienated nor diminished. On her becoming a widow, being divorced, or returning to the paternal roof, she remains absolute mistress of it. A husband who surprises his wife in adultery can no longer—hiding his dishonour within his own walls—judge and put her to death with the consent of the domestic tribunal. He must now leave the State to avenge his wrongs, and must resort to the courts, even though seeking only minor penalties. Divorce has become a public act of not unfrequent occurrence. The woman, in short, is no longer under her husband's manus, no longer subject to the patria potestas, no longer under the tutelage of the agnati: she is protected by the State. When the law still requires her to have a tutor or procurator, she can choose a stranger who becomes her servant rather than her master. Eventually even this last shadow of subjection disappears. Absolutely her own mistress, the woman may now hold property, increase her fortune, make her will, lose her virtue; but her dowry, guaranteed and kept intact by law, remains hers to the end of her life.
Nevertheless, as regards succession, the woman's rights are not yet the same as the man's. It is true, that should her father die intestate, she takes an equal share with her brothers of the inheritance; but in all other cases of intestacy the nearest female agnate stands after the most distant male. The woman cannot now do any legal act for others, though this had not been forbidden previously; she cannot be a witness; she cannot stand security for the debts of others. The Senatus-consultum Velleianum lays it down as a fixed rule, which, to a certain extent, has remained in force to our own days—that the woman must not undertake any obligation on behalf of others. She may alienate her possessions in others' favour, may incur a direct obligation, contract a debt, and transfer the money to others; but she cannot bind herself to pay another's debt, nor guarantee its payment. In the legislator's opinion, the infirmity of her sex leaves her enough intelligence to escape danger in assuming direct obligations, or by alienating her property, but not enough to guard her from lightly undertaking remote and indirect liabilities which are often no less serious.