y

i

ii

A Short History of Women’s Rights

From the Days of Augustus to the Present Time. With Special Reference to England and the United States

By

Eugene A. Hecker

Master in the Roxbury Latin School Author of The Teaching of Latin in Secondary Schools 99

G. P. Putnam’s Sons New York and London ttbe IRnickerbocker press 1911

Copyright, 1910

BY

EUGENE A. HECKER

Ube ftnfcftcrbocfcer press* mew Hod

MY MOTHER

PREFACE

WHILE making some researches in the evolu¬ tion of women’s rights, I was impressed by the fact that no one had ever, as far as I could discover, attempted to give a succinct account of the matter for English-speaking nations. Indeed, I do not believe that any writer in any country has essayed such a task except Laboulaye; and his Recherches sur la Condition Civile et Politique des Femmes, published in 1843, leaves much to be desired to one who is interested in the subject to-day.

I have, therefore, made an effort to fill a lack. This purpose has been strengthened as I have reflected on the great amount of confused informa¬ tion which is absorbed by those who have no time to make investigations for themselves. Accordingly, in order to present an accurate his¬ torical review, I have cited my authorities for all statements regarding which any question could be raised. This is particularly so in the chapters which deal with the condition of women under Roman Law, under the early Christian Church, and under Canon Law. In all these instances I have gone directly to primary sources, have investigated them myself, and have admitted

vi

Preface

no second-hand evidence. In connection with women’s rights in England and in the United States I have either consulted the statutes or studied the commentaries of jurists, like Messrs. Pollock and Maitland, whose authority cannot be doubted. To such I have given the exact references whenever they have been used. In preparing the chapter on the progress of women’s rights in the United States I derived great assistance from the very exhaustive History of Woman Suffrage, edited by Miss Susan B. Anthony, Mrs. Ida H. Harper, and others to whose unselfish labours we are for ever indebted. From their volumes I have drawn freely; but I have not given each specific reference.

The tabulation of the laws of the several States which I have given naturally cannot be entirely adequate, because the laws are being changed constantly. It is often difficult to procure the latest revised statutes. However, these laws are recent enough to illustrate the evolution of wo¬ men’s rights.

Finally, this volume was written in no hope that all readers would agree with the author, who is zealous in his cause. His purpose will be gained if he induces the reader to reflect for himself on the problem in the light of its historical develop¬ ment.

E. A. H.

Cambridge, Mass., 1910.

CONTENTS

CHAPTER I

PAGE

Women’s Rights under Roman Law . . i

CHAPTER II

Women and the Early Christian Church . 52

CHAPTER III

Rights of Women as Modified by the

Christian Emperors .... 65

chapter iv

Women among the Germanic Peoples . 77

chapter v

Digression on the Later History of Roman

Law ....... 100

chapter vi

The Canon Law and the Attitude of the

Roman Catholic Church . , .106

vii

viii Contents

CHAPTER VII

History of Women’s Rights in England

chapter VIII

Women’s Rights in the United States .

CHAPTER IX

General Considerations .

PAGE

. 120

150

236

Index

. 289

A Short History of Women’s Rights

I

A Short History of Women’s Rights

CHAPTER I

women’s rights under roman law, from

AUGUSTUS TO JUSTINIAN 27 B.C. TO 527 A.D.

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 Guardian- However, she was by no means allowed shlp' 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 guard¬ ian3; if the woman was married, the power be¬ longed to the husband. The consent of such supervision, whether of father, husband, or

1 Paulus, iii, 4 a, 1.

2Ulpian, Tit., xx, 16. Gaius, ii, 112.

3 Male relatives on the father’s side agnati were guardians in such cases; these failing, the judge of the supreme court (praetor) assigned one. See Ulpian, Tit., xi, 3, 4, and 24. Gaius, i, 185, and iii, 10. Libertae (freedwomen) took as guar¬ dians their former masters.

I

2 History of Women’s Rights

guardian, was essential, as Ulpian informs us,1 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. Through¬ out her life a woman was supposed to remain absolutely under the power2 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.3 The reason that women were so subjected to guardianship was “on account of their unsteadiness of character,”4 “the weak¬ ness of the sex,” and their “ignorance of legal matters.”5 Under certain circumstances, how¬ ever, women became sui iuris or entirely in¬ dependent: I. By the birth of three children (a freedwoman by four)6; II. By becoming a Vestal Virgin, of whom there were but six7; III. By a formal emancipation, which took place

1 Ulpian, Tit., xi, 27.

2 The power of the father was called potestas; that of the hus- band, manus.

3 Aulus Gellius, x, 23. Cf. Suetonius, Tiberius , 35.

4 Gaius, i, 144.

s Ulpian, Tit., xi, 1.

6 Ulpian, Tit., xi, 28 a. Gaius, i, 194. Paulus, iv, 9, 1-9.

7 Gaius, i, 145. Ulpian, Tit., x, 5.

3

Rights under Roman Law

rarely, and then often only with a view of trans¬ ferring the power from one guardian to another. 1 Even when sui iuris a woman could not acquire power over any one, not even over her own child¬ ren2; 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 child¬ ren an account of any property which she had managed for them.3 On the other hand, her children were bound to support her.4

So much for the laws on the subject. They seem rigorous enough, and in early times were doubtless executed with strictness. A Digression on marked feature, however, of the Roman there^°^thfOT character, a peculiarity which at once women 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

1 Gaius, i, 137. For an example see Pliny, Letters , viii, 18. Cf. Spartianus. Didius Iulianus , 8: filiam suam, potitus imperio, dato patrimonio, emancipaverat. See also Dio, 73, 7 (Xiphilin).

If emancipated children insulted or injured their parents, they lost their independence Codex, 8, 49 (50), 1.

2 Ulpian, Tit., viii, 7a.

3 Paulus, i, 4, 4: Mater, quae filiorum suorum rebus inter¬

vene, actione negotiorum gestorum et ipsis et eorum tutoribus tenebitur. 4 Ulpian in Dig., 25, 3, 5.

4

History of Women’s Rights

influence wielded by women 1 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.2 Valerius Maximus tells us that

1 For Livia’s great influence over Augustus see Seneca, de Clementia , i, 9, 6. Tacitus, Annals , i, 3, 4, and 5, and ii, 34. Dio, 55, 14-21, and 56, 47.

Agrippina dominated Claudius Tacitus, Annals , xii, 37. Dio, 60, 33. Caenis, the concubine of Vespasian, amassed great wealth and sold public offices right and left Dio, 65, 14. Plo¬ tina, wife of Trajan, engineered Hadrian’s succession Eutro- pius, viii, 6. Dio, 69, 1. A concubine formed the conspiracy which overthrew Commodus Herodian, i, 16-17. The plotting of Maesa put Heliogabalus on the throne Capitolinus, Maori- nus, 9-10. Alexander Severus was ruled by his mother Mam- maea Lampridius, Alex. Severus , 14; Herodian, vi, 1, 1 and 9. Gallienus invited women to his cabinet meetings Trebellius Pollio, Gallienus , 16. The wives of governors took such a strenu¬ ous part in politics and army matters that it caused the Senate grave concern see examples in Tacitus, Annals , iii, 33 and 34, and iv, 20; also i, 69, and ii, 55; id. Hist., iii, 69. Velleius Pater¬ culus, ii, 74 (Fulvia).

Of course, no woman ever had a right to vote; but neither did anybody else, since the Roman government had become an absolute despotism. The first woman on the throne was Pul- cheria, who, in 450 a.d., was proclaimed Empress of the East, succeeding her brother, Theodosius II. But she soon took a husband and made him Emperor. She had been practically sole ruler since 414.

2 Plutarch, Roman Questions , 6. Aulus Gellius, x, 23. Athen- aeus, x, 56.

5

Rights under Roman Law

Egnatius Mecenas, a Roman knight, beat his wife to death for drinking wine. 1 Cato the Censor (234-149 b.c.) dilated with joy on the fact that a woman could be condemned to death by her hus¬ band for adultery without a public trial, whereas men were allowed any number of infidelities without censure. 2 The senator Metellus (131 b.c.) lamented that Nature had made it necessary to have women.3

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,4 ‘“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

1 Valerius Maximus, vi, 3, 9. For this he was not even blamed, but rather received praise for the excellent example.

2 Aulus Gellius, x, 23. A woman in the Menaechmi of Plautus, iv, 6, 1, complains justly of this double standard of morality:

Nam si vir scortum duxit clam uxorem suam,

Id si rescivit uxor, impune est viro.

Uxor viro si clam domo egressa est foras,

Viro fit causa, exigitur matrimonio.

Utinam lex esset eadem quae uxori est viro!

3 Aulus Gellius, i, 6.

4 De Consolatione ad Marciam, xvi, 1.

6

History of Women’s Rights

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. 1 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.2 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.3 The masterly and sym-

1 Commentaries , A, y'.

\ 2 Quintilian, Instit. Orat., vi, i, 5.” Pliny, Letters , vi, 4 and 7, and vii, 5.

3 Great admiration expressed for Paulina, wife of Seneca, who opened her veins to accompany her husband in death Tacitus, Annals , xv, 63, 64. Story of Arria and Paetus Pliny, Letter sf

iii, 16. Martial, i, 13. The famous instance of Epponina, under Vespasian, and her attachment to her condemned hus¬ band Tacitus, Hist., iv, 67. Tacitus mentions that many ladies accompanied their husbands to exile and death Annals , xvi, 10, 11. Numerous instances are related by Pliny of tender and happy marriages, terminated only by death see, e.g., Let¬ ters, viii, 5. Pliny the elder tells how M. Lepidus died of regret for his wife after being divorced from her N. H., vii, 36. Val¬ erius Maximus devotes a whole chapter to Conjugal Love

iv, 6. But the best examples of deep affection are seen in tomb inscriptions e. g., CIL i, 1103, viii, 8123, ii, 3596, v, 1, 3496, v, 2, 7066, x, 8192, vi, 3, 15696, 15317, and 17690. Man and wife are often represented with arms thrown about one another’s shoulders to signify that they were united in death as in life. The poet Statius remarks that “to love a wife when she is living is pleasure; to love her when dead, a solemn duty’’ (Silvae,

7

Rights under Roman Law

pathetic delineation of Dido in the Aeneid shows how deeply a Roman could appreciate the charac¬ ter 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.* 1

Such are a few examples of the growth of respect for women; and we should naturally conclude that, as time progressed, the unjust Decayofthe laws of guardianship would no longer power of the

1 1 guardian.

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 en¬ forced. 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 Gaius2 in the second century, “seems to have no valid reason as foundation. For what is com¬ monly believed, to the effect that on account of unsteadiness of character they are generally

in prooemio). Yet some theologians would have us believe that conjugal love and fidelity is an invention of Christianity.

1 Pliny, Panegyricus, 26. For other instances see Capitoli- nus, Anton. Pius , 8; Lampridius, Alex. Severus , 57; Spartianus, Hadrian , 7, 8, 9; Capitolinus, M. Anton. Phil., 11.

2 Gaius, i, 190.

8 History of Women’s Rights

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.”1 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 in¬ vestigate the story of their rights in all its forms ; and the position of women in marriage will next occupy our attention.

As in all Southern countries where women mature early, the Roman girl usually married

1 Ulpian, Tit. xi, 25. Cf. Frag, iur Rom. Vatic. (Huschke, 325): Divi Diocletianus et Constantius Aureliae Pontiae: Actor rei forum sequi debet et mulier quoque facere procuratorem sine tutoris auctoritate non prohibetur. So Papinian, lib. xv, Responsorum (Huschke, 327). I shall discuss these matters at greater length when I treat of women and the management of their property.

9

Rights under Roman Law

young; twelve years were required by custom for her to reach the marriageable age. 1 In the earlier period a woman was acquired women and as wife in three different ways: I. By mamage‘ coemptio a mock sale to her husband2; II. By conjarreatio a solemn marriage with peculiar sacred rites to qualify men and women and their children for certain priesthoods3; III. By usus, or acquisition by prescription. A woman became a man’s legal wife by usus if he had lived with her one full year and if, during that time, she had not been absent from him for more than three successive nights. 4

All these forms, however, had either been abolished by law or had fallen into desuetude during the second century of our era, as is evident from Gaius.5 A man could marry even if not present personally; a woman could not.6 The woman’s parents or guardians were accustomed to arrange a match for her,7 as they still do in many parts of Europe. Yet the power of the

1 Dio, 54, 16. Pomponius in Dig., 23, 2, 4.

2 Gaius, i, 1 13.

3 Ulpian, Tit., ix, 1: Farreo convenit uxor in manum certis verbis et testibus X praesentibus et sollemni sacrificio facto, in quo panis quoque farreus adhibetur. Cf. Gaius, i, 112.

4 Aulus Gellius, iii, 2, 12. Gaius, i, 111.

s Gaius, i, no and in.

6 Paulus, ii, xix, 8.

7 Pliny, Letters, i, 14, will furnish an example; cf. id. vi, 26, to Servianus: Gaudeo et gratulor, quod Fusco Salinatori filiam tuam destinasti. Note the way in which Julius Caesar arranged a match for his daughter Suetonius, Divus Julius , 21.

10

History of Women’s Rights

father to coerce his daughter was limited. Her consent was important. “A marriage cannot exist,” remarks Paulus, “unless all parties con¬ sent.”1 Julianus writes also that the daughter must give her permission2; yet the statement of Ulpian which immediately follows in the Digest shows that she had not complete free will in the matter: “It is understood that she who does not oppose the wishes of her father gives consent. But a daughter is allowed to object only in case her father chooses for her a man of unworthy or disgraceful character.” 3 The son had an advantage here, because he could never be forced into a marriage against his will. 4 The consent of the father was always necessary for a valid marriage. 5 He could not by will compel his daughter to marry a certain person.6 After she was married, he still retained power over her, unless she became independent by the birth of three children; but this was largely to protect her and represent her in court against her husband if necessity should arise.7 A father was not per-

1 Paulus in Dig., 23, 2, 2: Nuptiae consistere non possunt, nisi consentiunt omnes, id est, qui coeunt quorumque in po testate sunt.

2 Julianus in Dig., 23, 1, 11.

3 Ulpian in Dig., 23, 1, 12.

4 Paulus in Dig., 23, 1, 13. Terentius Clemens in Dig., 23, 2, 21.

5 Paulus, ii, 19, 2.

6 Ulpian, 24, 17.

7 Cf. Ulpian, Tit., vi, 6: Divortio facto, si quidem sui iuris sit mulier, ipsa habet rei uxoriae actionem, id est, dotis repetitionem;

Rights under Roman Law

ii

mitted to break up a harmonious* 1 marriage ; he could not get back his daughter’s dowry with¬ out her consent, 2 nor force her to return to her husband after a divorce3; and he was punished with loss of citizenship if he made a match for a widowed daughter before the legal time of mourn¬ ing for her husband had expired. 4 A daughter passed completely out of the power of her father only if she became sui iuris by the birth of three children or if she became a Vestal, or again if she married a special priest of Jupiter ( Flamen Dialis ), in which case, however, she passed completely into the power of her husband. Under all cir¬ cumstances a daughter must not only show respect for her father, but also furnish him with the necessaries of life if he needed them. 5

Under the Empire no such thing as a “breach of promise” suit was permitted, although in the

quodsi in potestate patris sit, pater adiuncta filiae persona habet actionem.

The technical recognition of the father’s power was still strong. Cf. Pliny, Panegyricus, 38 : Tu quidem, Caesar . . . intui-

tus, opinor, vim legemque naturae, quae semper in dicione paren- tum esse liberos iussit. The same writer, on requesting Trajan to give citizenship to the children of a certain freedman, is care¬ ful to add the specification that they are to remain in their fath¬ er’s power see Pliny to Trajan, xi (vi).

1 Paulus, vi, 15. Codex, v, 4, 11, and 17, 5.

2 Paulus, in Dig., 23, 3, 28. Codex, v, 13, 1, and 18, 1.

3 Codex, v, 17, 5.

4 Salvius Julianus: Frag. Perp. Ed.: Pars Prima, vii under “De is qui notan tur infamia.”

s Codex, 8, 46 (47), 5.

12

History of Women’s Rights.

days of the Republic the party who broke a pro¬ mise to marry had been liable to a suit for dam- Breach of ages.1 But this had now disappeared, Promise.” anci either party could break off the betrothal at pleasure without prejudice.2 What¬ ever gifts had been given might be demanded back.3 The engagement had to be formally broken off before either party could enter into mar¬ riage or betrothal with another ; otherwise he or she lost civil status.4 While an engagement lasted, the man could bring an action for damages against any one who insulted or injured his fiancee.5

The Roman marriage was a purely civil con¬ tract based on consent.6 The definition given by Husband and the law was a noble one. “Marriage is wife- the union of a man and a woman and a partnership of all life; a mutual sharing of laws human and divine.” 7 The power of the husband over the wife was called manus; and the wife stood in the same position as a daughter.8 No husband was allowed to have a concubine.9 He was bound to support his wife adequately, look

1 Aulus Gellius, iv, 4.

2 Juvenal, vi, 200-203. Gaius in Dig., 24, 2, 2. Ulpian, ibid., 23, 1, 10. Codex, v, 17, 2, and v, 1, 1.

3 Codex, v, 3, 2.

4 Dig., 3, 2, 1.

5 Ulpian in Dig., 47, 10, 24.

6 Cf. Alexander Severus in Codex, viii, 38, 2 : Libera matrimonia esse antiquitus placuit, etc. Also Codex, v, 4, 8 and 14.

7 Modestinus in Dig., xxiii, 2, 1.

8 Gaius, ii, 159.

9 Paulus, ii, xx, 1.

13

Rights under Roman Law

out for her interests, 1 and strictly to avenge any insult or injury offered her2; any abusive treatment of the wife by the husband was pun¬ ished by an action for damages. 3 A wife was compelled by law to go into solemn mourning for a space of ten months upon the death of a husband. 4 During the period of mourning she was to abstain from social banquets, jewels, and crimson and white garments. s If she did not do so, she lost civil status. The emperor Gordian, in the year 238, remitted these laws so far as solemn clothing and other external signs of mourning above enumerated were concerned. 6 But a husband was not compelled to do any legal mourning for the death of his wife. 7

The wife was, as I have said, in the power of her husband. Originally, no doubt, this power was absolute ; the husband could even put his wife to death without a public trial. But the world was progressing, and that during the first three centuries after Christ the power of the husband was reduced in practice to absolute nullity I shall

1 Note the rescript of Alexander Severus to a certain Aquila (Codex, ii, 18, 13) : Quod in uxorem tuam aegram erogasti, non a socero repetere, sed adfectioni tuae debes expendere.

2 See, e.g., Dig., 47, 10, and Ulpian, ibid., 48, 14, 27.

3 Cf. Gaius, i, 141 : In summa admonendi sumus, adversus eos, quos in mancipio habemus, nihil nobis contumeliose facere licere; alioquin iniuriarum (actione) tenebimur.

4 Paulus, i, 21, 13.

5 Paulus, i, 21, 14.

6 Codex, ii, 11, 15.

7 Paulus in Dig., iii, 2, 9.

14 History of Women’s Rights

make clear in the following pages. I shall, accordingly, first investigate the rights of the wife over her dowry, that is, the right of managing her own property.

Even from earliest times it is clear that the wife had complete control of her dowry. The henpecked husband who is afraid of offending his wealthy wife is a not uncommon figure in the comedies of Plautus and Terence; and Cato the Censor growled in his usual amiable manner at the fact that wives even in his day controlled com¬ pletely their own property. 1 The attitude of the Roman law on the subject is clearly expressed. “It is for the good of the state that women have their dowries inviolate.” 2 “The dowry is always and everywhere a chief concern; for it is for the public good that dowries be retained for women, since it is highly necessary that they be dowered in order to bring forth offspring and replenish the state with children. 3 It is just that the income

of the dowry belong to the husband; for inas¬ much as it is he who stands the burdens of the married state, it is fair that he also acquire the interest.”4 “Nevertheless, the dowry belongs

1 Aulus Gellius, xvii, 6, speech of Cato: Principio vobis mulier rnagnam dotem adtulit; turn magnam pecuniam recipit, quam in viri potestatem non committit, earn pecuniam viro mutuam dat; postea, ubi irata facta est, servum recepticum sectari atque flagitare virum iubet.

2 Paulus in Dig., 23, 3, 2.

3 Pomponius in Dig., 24, 3, 1.

4 Ulpian in Dig., 23, 3, 7.

15

Rights under Roman Law

to the woman, even though it is in the goods of the husband.”1 “A husband is not permitted to alienate his wife’s estate against her will.” 2 A wife could use her dowry during marriage to support herself, if necessary, or her kindred, to buy a suitable estate, to help an exiled parent, or to assist a needy husband, brother, or sister. The numerous accounts in various authors of the first three centuries after Christ confirm the statement that the woman’s power over her dowry was absolute.3 Then as now, a man might put his property in his wife’s name to escape his creditors,4 a useless proceeding, if she had not had complete control of her own property.

When the woman died, her dowry, if it had been given by the father (dos projecticia) returned to the latter; but if any one else had given it ( dos adven¬ titia) , the dowry remained with the husband, unless the donor had expressly stipulated that it was to be returned to himself at the woman’s death (dos recepticia) .5 In the case of a dowry of the first kind, the husband might retain what he had

1 Tryfoninus in Dig., 23, 3, 75.

2 Gaius, ii, 63. Paulus, ii, 21 b.

3 E.g. Juvenal, vi, 136-141. Martial, viii, 12.

4 Apuleius Apologia , 523: Pleraque tamen rei familiaris in nomen uxoris callidissima fraude confert, etc. ; id., 545, 546 proves further the power of the wife: ea condicione factam coniunc- tionem, si nullis a me susceptis liberis vita demigrasset, ut dos omnis, etc. evidently the woman was dictating the disposal of her dowry.

s Ulpian, Tit., vi, 3, 4, and 5. Codex, v, 18, 4.

16 History of Women’s Rights

expended for his wife’s funeral. 1 The dowry was confiscated to the state if the woman was convicted of lese majeste, violence against the state, or murder.2 If she suffered punishment involving loss of civil status under any other law which did not assess the penalty of confiscation, the husband acquired the dowry just as if she were dead. Banishment operated as no impediment; if the woman wished to leave her husband under these circumstances, her father could recover the dowry. 3

A further confirmation of the power of the wife over her property is the law that prohibited gifts between husband and wife; obviously, a woman could not be said to have the power of making a gift if she had no right of property of her own. The object of the law mentioned was to prevent the husband and wife from receiving any lasting damage to his or her property by giving of it under the impulse of conjugal affection.4 This statute acted powerfully to prevent a husband from wheedling a wife out of her goods ; and in case the latter happened to be of a grasping disposition the law was a protection to the husband and hence to the children, his heirs, for whose interests the Roman law constantly provided.

1 Ulpian in Dig., xi, 7, 16; ibid., Papinian, 17; ibid., Julianus, 18. Paulus, i, xxi, II.

2 Ulpian in Dig., 48, 20, 3.

3 Ulpian in Dig., 48, 20, 5.

4 Ulpian in Dig., 24 1, 1: Moribus apud nos receptunUest, ne inter virum et uxorem donationes valerent. hoc autem re- ceptum est, ne mutuo amore invicem spoliarentur, donationibus non temperantes, sed profusa erga se facilitate.

17

Rights under Roman Law

Gifts between husband and wife were never¬ theless valid under certain conditions. It was permissible to make a present of clothing and to bestow various tokens of affection, such as orna¬ ments. The husband could present his wife with enough money to rebuild a house of hers which had burned. 1 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.2 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. 3 The point in all gifts was, that neither party should become richer by the donation.4

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 Pauluss: “A special action for the recovery of

1 Paulus in Dig., 24, 1, 14.

2 Gaius in Dig., 24, 1, 42; ibid., Licinius Rufus, 41 ; Ulpian, Tito vii, 1. Martial, vii, 64 et post hoc dominae munere factus eques.

3 Paulus, ii, xxiii, 1.

4 Cf. Paulus, ii, xxiii, 2.

s Paulus in Dig., 25, 2, 1. Codex, v, 21, 2.

i8 History of Women’s Rights

property removed [rerum amotarum indicium] hag been introduced against her who was a wife, be¬ cause it has been decided that it is not possible to bring a criminal action for theft against her [quia non placuit cum ea furti agere posse]. Some as Nerva Cassius think she cannot even com¬ mit 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.” 1 “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.”2 “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.”3

j 1 Gaius in Dig., 25, 2, 2.

2 Paulus in Dig., 25, 2, 3.

3 Ulpian in Dig., 47, 2, 52. The respect shown for family- relations may be seen also from the fact that a son could com¬ plain de facto matris queri if he believed that his mother had

19

Rights under Roman Law

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.* 1

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,2 a maxim which present day lawyers may reflect upon with profit. A father was permitted to put to death

brought in supposititious offspring to defraud him of some of his inheritance; but he was strictly forbidden to bring her into court with a public and criminal action Macer in Dig., 48, 2, 1 1 : sed ream earn lege Cornelia facer e permissum ei non est.

1 Ulpian in Dig., 48, 14, 27.

2 Ulpian in Dig., 48, 5, 14 (13): Iudex adulterii ante oculos habere debet et inquirere, an maritus pudice vivens mulieri quoque bonos mores colendi auctor fuerit. periniquum enim videtur esse, ut pudicitiam vir ab uxore exigat, quam ipse non exhibeat. Cf. Seneca, Ep ., 94: Scis improbum esse qui ab uxore pudicitiam exigit, ipse alienarum corruptor uxorum. Scis ut illi nil cum adultero, sic nihil tibi esse debere cum pellice. Antoninus Pius gave a husband a bill for adultery against his wife “Pro¬ vided it is established that by your life you give her an ex¬ ample of fidelity. It would be unjust that a husband should demand a fidelity which he does not himself keep” quoted by St. Augustine, de Conj. Adult., ii, ch. 8. In view of these explicit statements it is difficult to see what the Church Father Lactantius meant by asserting ( de Vero Cultu, 23) : Non enim, sicut iuris pub- lici ratio est, sola mulier adultera est, quae habet alium; maritus autem, etiamsi plures habeat, a crimine adulterii solutus est. Perhaps this deliberate distortion of the truth was another one of the libels against pagan Rome of which the pious Fathers are so fond “for the good of the Church.”

20

History of Women’s Rights

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. 1 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 freed- man, or had been convicted on some crim¬ inal charge involving loss of citizenship.2 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.3 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. 4 He must at once divorce a wife guilty of adultery; otherwise he was punished as a pander, and that meant loss of citizenship.5 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

1 Papinian in Dig., 48, 5, 21 (20) ; ibid., Ulpian, 24 (23). Paulus, ii, xxvi.

2 Macer in Dig., 48, 5, 25 (24).

3 Papinian in Dig., 48, 5, 23 (22).

4 Papinian in Dig., 48, 5, 39 (38); ibid., Marcianus, 48, 8, 1.

s Paulus, ii, xxvi. Macer in Dig., 48, 5, 25 (24), ibid., Ulpian, 48, 5, 30 (29).

21

Rights under Roman Law

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.1 We have mention also in several writers of some curious and vicious punishments that might be inflicted on men guilty of adultery.2

Now, all this seems rigorous enough; but, as I have already remarked, we must beware of im¬ agining 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