Ulpian, xiv: feminis lex Iulia a morte viri anni tribuit vacationem, a divortio sex mensum; lex autem Papia a morte viri biennii, a repudio anni et sex mensum.
Ulpian in Dig., 25, 3, 1. Paulus, ii, xxiv, 5.
Ulpian in Dig., 25, 4, 8.
Codex, v, 24, 1.
Codex, vi, 60, 1: Res, quae ex matris successione fuerint ad filios devolutae, ita sint in parentum potestate, ut fruendi dumtaxat habeant facultatem, dominio videlicet carum ad liberos pertinente.
Neratius in Dig., 26, 1, 18.
Codex, v, 35, 1.
Codex, ii, 12, 18: alienam suscipere defensionem virile officium est ... filio itaque tuo, si pupillus est, tutorem pete.
Ulpian, Tit. viii, 7a. Paulus, i, 4, 4.
ad Helviam matrem de consol., xiv, 3.
Other instances of women trustees will be found in Apuleius, Apologia 516; Paulus in Dig; iii, 5,23 (24): avia nepotis sui negotia gessit, etc.; ibid., Marcellus, 46, 3, 48: Titia cum propter dotem bona mariti possideret, omnia pro domina egit, reditus exegit, etc.
Tacitus, Agricola, 43.
Frag. iur. Rom. Vat., 282.
Ulpian, viii, 7a.
Gaius, ii, 227. Digest, 35, 2.
E.g. Pliny, Letters, v, 1. Codex, iii, 28, 19; id., iii, 28, 28. Cf. Codex, iii, 29, I, and 29, 7; and Paulus in Dig., v, 2, 19. Note the extreme anxiety of the son of Prudentilla about her money as given by Apuleius, Apologia, 517. The estate of a mother who died intestate went to her children, not to her husband; the latter could only enjoy the interest until they arrived at maturity—Codex, vi, 60, 1; Modestinus in Dig., 38, 17, 4.
E.g., Juvenal, iv, 18-21. Pliny, Letters, ii, 20.
Digest, xiv, 1 and 3 and 8—on the actio exercitoria and institoria. Cf. Codex, iv, 25, 4: et si a muliere magister navis praepositus fuerit, etc.
CIL, xiv, 326.
Martial, xi, 71. Apuleius, Metam., v, 10. Soranus, i, 1, ch. 1 and 2. Galen, vii, 414 (cf. xiii, 341).
E.g. Suetonius, Nero, 27.
Carmina Priapea, 18 and 27. Ulpian, xiii, 1. The Roman drama had now degenerated into mere vaudeville, mostly lascivious dancing. Senators and their children were forbidden to marry any woman who had herself or whose father or mother had been on the stage.
Martial, ii, 17, 1.
Petronius, Sat., 45: Titus noster ... habet et mulierem essedariam. This would not be strange, when we reflect that under Domitian noble ladies even fought in the arena.
Thesmophoriazusae, 443-459.
See Cicero, pro Caecina, 5, for an account of these business agents for women.
Paulus, ii, xi; id. in Dig., 16, 1, 1; Aulus Gellius, v, 19; Pomponius in Dig., 48, 2, 1: non est permissum mulieri publico iudicio quemquam reum facere.
Ulpian in Dig., 1, 16, 9. Salvius Julianus, Pars Prima, vi: si non habebunt advocatum, ego dabo. Alexander Severus (222-235 A.D.) gave pensions to those advocates in the provinces who pleaded free of charge—Lampridius, Alex. Severus, 44.
Cf. Paulus in Dig., 23, 3, 28. Codex, v, 13, 1, and 18, 1. Ulpian in Dig., iii, 3, 8.
Gaius, i, 137.
Frag. iur. Rom. Vat., 325; id., 327 (from Papinian): mulieres quoque et sine tutoris auctoritate procuratorem facere posse.
Ulpian in Dig., iii, 3, 8; ibid., Paulus, iii, 3, 41.
Ulpian in Dig., iii, 5, 3.
Pomponius in Dig., 48, 2, 1; ibid., Papinian, 48, 2, 2—who adds that she could also do so in a case regarding the will of a mother or father's freedman.
Marcianus in Dig., 48, 2, 13.
Papinian in Dig., 48, 4, 8.
Juvenal, vi, 242—245.
Valerius Maximus, viii, 3, 3. Appian, B.C., iv, 32 ff. Quintilian, i, 1, 6.
Valerius Maximus, viii, 3, 2.
Quintilian, ix, 2, 20 and 34.
E.g., Pliny Letters, i, 5, and iv, 17.
E.g., Huschke, pp. 796, 797, 803, 807, 809, 810, 856, 857, 858. Or instances such as that mentioned in Digest, 48, 2, 18, where a sister brings an action to prove her brother's will a forgery.
Pliny, Letters, vi, 33.
Paulus in Dig., 22, 6, 9.
Fully treated in Dig., 16, 1, and Paulus, ii, xi.
Ulpian in Dig., 16, 1, 2.
Aulus Gellius, xvii, 6. St. Augustine, de Civit. Dei, iii, 21: nam tunc, id est inter secundum et postremum bellum Carthaginiense, lata est etiam illa lex Voconis, ne quis heredem feminam faceret, nec unicam filiam.
Dio, 56, 10.
Aulus Gellius, xx, 1, 23. According to Dio, 56, 10, it was Augustus who in the year 9 A.D. gave women permission to inherit any amount.
Fully treated in Dig., 35, 2. Also in Gaius, ii, 227, and Paulus, iii, viii, 1-3, and iv, 3, 3, and 5 and 6.
Paulus, iv, Tit. v, 1. Cases in which "Complaints of Undutiful Will" were the issue will be found, e.g., in Codex, iii, 28, 1 and 19 and 28; id., iii, 29, 1 and 7.
Ulpian in Dig., 38, 16, 1: suos heredes accipere debemus filios filias sive naturales sive adoptivos. Instances of daughters being left heiresses of whole estates may be found, e.g., in Dig., 28, 2, 19: cum quidam filiam ex asse heredem scripsisset filioque, quem in potestate habebat, decem legasset, etc. Or the example mentioned by Scaevola in Dig., 41, 9, 3: Duae filiae intestato patri heres exstiterunt, etc.
Callistratus in Dig., 48, 19, 26: crimen vel poena paterna nullam maculam filio infligere potest. namque unusquisque ex suo admisso sorti subicitur nec alieni criminis successor constituitur; idque divi fratres Hierapolitanis rescripserunt. "Nothing is more unjust," writes Seneca (de Ira, ii, 34, 3), "than that any one should become the heir of the odium excited by his father."
Paulus, v, xii, 1.
Paulus, v, xii, 12.
Ulpian in Dig., 48, 4, 11.
Ulpian in Dig., 48, 4, 11.
Hermogenianus in Dig., 48, 4, 9.
Sulla had not only deprived the children of the proscribed of all their estates, but had also debarred them from aspiring to any political office—see Velleius Paterculus, ii, 28.
For examples of the clemency of Augustus see Suetonius, div. Aug., 33 and 51 and 67; Seneca, de Ira, iii, 23, 4 ff., and 40, 2; Velleius Paterculus, ii, 86, 87.
For Tiberius see, e.g., Tacitus, Annals, iv—case of Silius; id., Annals, iii, 17, 18—case of Piso. For Nero, note Tacitus, Annals, xiii, 43—case of Publius Suilius. Clemency of Claudius mentioned in Dio, 60, 15, 16; of Vitellius in Tacitus, Hist., ii, 62.
Spartianus, Had., 18.
Capitolinus, Anton. Pius, 7. See also the anecdote of Aurelian in Vopiscus, Aurelian, 23.
Codex, iv, 12, 2, rescript of Diocletian: ob maritorum culpam uxores inquietari leges vetant. proinde rationalis noster, si res quae a fisco occupatae sunt dominii tui esse probaveris, ius publicum sequetur.
Gaius, ii, 129 and 132.
Gaius, ii, 132.
Codex, iii, 36, 11: Inter filios ac filias bona intestatorum parentium pro virilibus portionibus aequo iure dividi oportere explorati iuris est.
Gaius, iii, 25-31.
See, e.g., Codex, vi, 60, i: Res, quae ex matris successione fuerint ad filios devolutae, ita sint in parentum potestate, ut fruendi dumtaxat habeant facultatem, dominio videlicet eorum ad liberos pertinente.
For all this, see Codex, v, 9, 5, and vi, 18, q.
Paulus, v, 4, 14, who adds that exile was the penalty if the crime had not been completely carried out. It would seem also that ravished women had the option of deciding whether their seducers should marry them or be put to death—see the vitiatarum electiones as mentioned by Tacitus, Dial. de Orat., 35. According to Ruffus, 40, a soldier who did violence to a girl had his nostrils cut off, besides being forced to give the injured woman a third part of his goods: militi, qui puellae vim adtulerit et stupraverit, nares abscinduntur, data puellae tertia militis facultatum parte.
Paulus, v, 4, 21.
By the lex Fabia. Paulus, v, 30 B. Digest, 48, 15; 17, 2, 51.
Ulpian in Dig., 48, 8, 8; ibid., Tryphoninus, 48, 19, 39.
Paulus, v, 23, 14; id. in Dig., 48, 19, 38.
Paulus, supra cit.
Martial, x, 35, and x, 38.
Sappho, Telesilla, and Corinna belong to an earlier period, when the Oriental idea of seclusion for women had not yet become firmly fixed in Greece. Women like Agallis of Corcyra, who wrote on grammar (Athenaeus, i, 25) and lived in a much later age, doubtless belonged to the hetaerae class.
See, e.g., Pliny, Letters, v, 16.
Pliny, Letters, i, 16.
Persius, i, 4-5: Ne mihi Polydamas et Troiades Labeonem praetulerint? "Are you afraid that Polydamas and the Trojan Ladies will prefer Labeo to me?" The Trojan Ladies, of course, stand for the aristocratic classes, Colonial Dames, so to speak, who were fond of tracing their descent back to Troy just as Americans like to discover that their ancestors came over in the Mayflower.
Juvenal, vi, 434-440.
Cf. Martial, ii, 90: sit mihi verna satur, sit non doctissima coniunx.
The famous verses of Martial:
Quid tibi nobiscum, ludi scelerate magister?
Invisum pueris virginibusque caput!
Vespasian (69-79 A.D.) started free public education by appointing Quintilian Professor of Rhetoric subsidised by the state. Succeeding emperors enlarged upon it; but especially Alexander Severus (222-235 A.D.), who instituted salaries for teachers of rhetoric, literature, medicine, mechanics, and architecture in Rome and the provinces, and had poor boys attend the lectures free of charge—see Lampridius, Alex. Severus, 44.
Pliny, Paneg., 26. Spartianus, Hadrian, 7, 8-9. Capitolinus, Anton. Pius 8; id. M. Anton. Phil. II. Lampridius, Alex. Severus, 57.
Pliny, Letters, vii, 18. The sum was 500,000 sesterces.
Any infringement of this vow was punished by burial alive—for instances, see Suetonius, Domitian, 8; Herodian, iv, 6, 4: Pliny, Letters iv, 11; Dio, 77, 16 (Xiphilin). Their paramours were beaten to death.
A full account of the Vestals will be found in Aulus Gellius, i, 12.
Quintilian, vii, 3, 27: ad servum nulla lex pertinet. On the rare instances when a slave could inform against his master in a public court, see Hermogenianus in Dig., v, 1, 53.
Gaius, i, 52 ff.
Gaius, iii, 222. Cf. Juvenal vi, 219-223, and 474-495.
Gaius, iii, 222. Salvius Julianus, Pars Secunda, xv. Aulus Gellius, xx, i.
Paulus, v, 16.
Paulus, iii, v, 5 ff. Pliny, Letters, viii, 14. Tacitus, Annals xiii, 32.
Valerius Maximus, vi, 8, in a chapter entitled de fide servorum speaks with great admiration of instances of fidelity on the part of slaves. Seneca ate with his—Epist. 47, 13. Martial laments the death of a favourite slave girl—v, 34 and 37. Dio (62, 27—Xiphilin) notes the heroic conduct of Epicharis, a freedwoman, who was included in a conspiracy against Nero; but she revealed none of its secrets, though tortured in every way by Tigellinus. The pages of Pliny are full of the spirit of kindliness to slaves.
See Tacitus, Annals, xiv, 42 ff.
Suetonius, Claudius, 25. Dio, 60, 29 (Xiphilin).
Sec, e.g., Seneca, de Clem., i,18, 1 and 2—especially the anecdote of Vedius Pollio (mentioned also by Dio, 54, 23).
The interesting letter of Pliny, viii, 16; and cf. iii, 14, and v, 19. Juvenai, vi, 219-223.
Spartianus, Hadrian, 18.
Gaius, i, 52 ff. Cf. Ulpian in Dig., 1, 12, 1 and 8.
The punishment for this was pecuniary damages equal to twice the highest value of a slave during the year in which he was killed.
Ulpian in Dig., i., 12, 8: hoc quoque officium praefecto urbi a divo Severo datum est, ut mancipia tueatur ne prostituantur.
Vopiscus, Aurelian, 49
Vopiscus, Tacitus, 9.
CHAPTER II
WOMEN AND THE EARLY CHRISTIAN CHURCH
Meanwhile a new world force, destined to overthrow the old order of things, was growing slowly to maturity and spreading out its might until eventually it fought its way to preeminence. I have traced the rights of women under the regime of pagan Rome; I shall inquire next into the position of women under Christianity. We must first note the attitude of the early Christians towards women in general; for that attitude will naturally be reflected in any laws made after the Church has become supreme and is combined with and directs the State. That will demand a special chapter on Canon Law; but in the present chapter I propose to show how women were regarded by the Christians in the centuries which were the formative period of the Church.
The direct words of Christ so far as they relate to women and as we have them in the Gospels concern themselves wholly to bring about purity in the relation of the sexes. "Ye have heard that it was said, Thou shalt not commit adultery; but I say unto you, that every one that looketh on a woman to lust after her hath committed adultery with her already in his heart."[212] His commands on the subject of divorce are positive and unequivocal: "It was said also, Whosoever shall put away his wife, let him give her a writing of divorcement; but I say unto you, that every one that putteth away his wife, saving for the cause of fornication, maketh her an adultress; and whosoever shall marry her when she is put away, committeth adultery."[213] Christ was content to lay down great ethical principles, not minute regulations. Of any inferiority on the part of women he says nothing, nor does be concern himself with giving any directions about their social or legal rights. He blessed the marriage at Cana; and to the woman taken in adultery he showed his usual clemency. For the rest, his relations with women have an atmosphere of rare sympathy, gentleness, and charm.
But as soon as we leave the Gospels and read the Apostles we are in a different sphere. The Apostles were for the most part men of humble position, and their whole lives were directed by inherited beliefs which were distinctly Jewish and Oriental or Greek; not Western. In the Orient woman has from the dawn of history to the present day occupied a position exceedingly low. Indeed, in Mohammedan countries she is regarded merely as a tool for the man's sensual passions and she is not allowed to have even a soul. In Greece women were confined to their houses, were uneducated, and had few public rights and less moral latitude; their husbands had unlimited license.[214] The Jewish ideal is by no means a lofty one and cannot for a moment compare with the honour accorded the Roman matron under the Empire. According to Genesis a woman is the cause of all the woes of mankind. Ecclesiasticus declares that the badness of men is better than the goodness of women.[215] In Leviticus[216] we read that the period of purification customary after the birth of a child is to be twice as long in the case of a female as in a male. The inferiority of women was strongly felt; and this conception would be doubly operative on men of humble station who never travelled, who had received little education, and whose ideas were naturally bounded by the horizon of their native localities. We are to remember also that the East is the home of asceticism, a conviction alien to the Western mind. There is no parallel in Western Europe to St. Simeon Stylites.
We would, therefore, expect to find in the teachings of the Apostles an expression of Jewish, i.e., Eastern ideals on the subject of women; and we do so find them. Following the express commands of Christ, they exhorted to sexual purity and reiterated his injunctions on the matter of divorce. They went much farther and began to legislate on more minute details. Paul allows second marriages to women[217]; but thinks it better for a widow to remain as she is.[218] It is better to marry than to burn; yet would he prefer that men and women should remain in celibacy.[219] The power of the father to arrange a marriage for his daughter was, under Roman law, limited by her consent; but the words of Paul make it clear that it was now to be a Christian precept that a father could determine on his own responsibility whether his daughter should remain a virgin.[220] Wives are to be in subjection to their husbands, and "let the wife see that she fear her husband."[221] Woman is the weaker vessel[222]; she is to be silent in church; if she desires to learn anything, she should ask her husband at home.[223] Furthermore: "I permit not a woman to teach, nor to have dominion over a man, but to be in quietness. For Adam was first formed, then Eve; and Adam was not beguiled, but the woman being beguiled hath fallen into transgression; but she shall be saved through childbearing, if they continue in faith and love and sanctification with sobriety."[224] The apparel of women also evoked legislation from the Apostles. Women were to pray with their heads veiled "for the man is not of the woman, but the woman for the man."[225] Jewels, precious metal, and costly garments were unbecoming the modest woman.[226]
In this early stage of Christianity we may already distinguish three conceptions that were quite foreign to the Roman jurist: I. The inferiority and weakness of women was evident from the time of Eve and it was an act of God that punished all womankind for Eve's transgression. Woman had been man's evil genius. II. She was to be submissive to father or husband and not bring her will in opposition to theirs. III. She must not be prominent in public, she must consider her conduct and apparel minutely, and she was exhorted to remain a virgin, as being thus in a more exalted position. At the same time insistence was placed on the fact that a virgin, wife, and widow must be given due honour and respect, must be provided for, and allowed her share in taking part in those interests of the community which were considered her sphere.
If, now, we examine the writings of the Church Fathers, we shall see these ideas elaborated with all the vehemence of religious zeal.
The general opinions of the Fathers regarding women present a curious mixture. They are fond of descanting on the fact that woman is responsible for all the woes of mankind and that her very presence is dangerous. At the same time they pay glowing tribute to women in particular. St. Jerome held that women were naturally weaker, physically and morally, than men.[227] The same saint proves that all evils spring from women[228]; and in another passage he opines that marriage is indeed a lottery and the vices of women are too great to make it worth while.[229] "The sex is practiced in deceiving," observes St. Maximus.[230] St. Augustine disputes subtly whether woman is the image of God as well as man. He says no, and proves it thus[231]: The Apostle commands that a man should not veil his head, because he is the image of God; but the woman must veil hers, according to the same Apostle; therefore the woman is not the image of God. "For this reason, again," continues the Saint, "the Apostle says 'A woman is not permitted to teach, nor to have dominion over her husband.'" Bishop Marbodius calls woman a "pleasant evil, at once a honeycomb and a poison" and indicts the sex,[232] something on the order of Juvenal or Jonathan Swift, by citing the cases of Eve, the daughters of Lot, Delilah, Herodias, Clytemnestra, and Progne. The way in which women were regarded as at once a blessing and a curse is well illustrated also in a distich of Sedulius: "A woman alone has been responsible for opening the gates of death; a woman alone has been the cause of a return to life."[233]
That women should be in subjection, in accordance with the dictum of Paul, the Church Fathers assert emphatically. "How can it be said of a woman that she is the image of God," exclaims St. Augustine,[234] "when it is evident that she is subject to the rule of her husband and has no authority! Why, she can not teach, nor be a witness, nor give security, nor act in court; how much the more can she not govern!" Women are commanded again and again not to perform any of the functions of men and to yield a ready and unquestioning obedience to their husbands.[235] The Fathers also insist that marriage without a paternal parent's consent is fornication.[236]
Marriage was looked upon as a necessary evil, permitted, indeed, as a concession to the weakness of mankind, but to be avoided if possible. "Celibacy is to be preferred to marriage," says St. Augustine.[237] "Celibacy is the life of the angels," remarks St. Ambrose.[238] "Celibacy is a spiritual kind of marriage," according to St. Optatus.[239] "Happy he," says Tertullia[240] "who lives like Paul!" The same saint paints a lugubrious picture of marriage and the "bitter pleasure of children" (liberorum amarissima voluptate) who are burdens and just as likely as not will turn out criminals. "Why did the Lord cry woe unto those that are pregnant and give suck, unless it was to call attention to the fact that children will be a hindrance on the day of judgment?"[241] When such views were entertained of marriage, it need not seem remarkable that Tertullian and St. Paul of Nolan, like Tolstoy to-day, discovered the blessings of a celibate life after they were married and ran away from their wives.[242] Jerome finds marriage useful chiefly because it produces virgins.[243]
As for second marriages, the Montanist and the Novatian sects condemned them absolutely, on the ground that if God has removed a wife or husband he has thereby signified his will to end the marrying of the parties; Tertullian calls second marriage a species of prostitution.[244]Jerome expresses the more tolerant and orthodox view: "What then? Do we condemn second marriages? Not at all; but we praise single ones. Do we cast the twice-married from the Church? Far from it; but we exhort the once-married to continence. In Noah's ark there were not only clean, but also unclean animals."[245]
As the Fathers were very well aware of the subtle influence of dress on the sexual passions, we have a vast number of minute regulations directing virgins, matrons, and widows to be clothed simply and without ornament; virgins were to be veiled.[246] Tertullian, with that keen logic of which the Church has always been proud in her sons, argues that inasmuch as God has not made crimson or green sheep it does not behoove women to wear colours that He has not produced in animals naturally.[247] St. Augustine forbids nuns to bathe more than once a month, unless under extreme necessity.[248]
As soon as the Church begins to exercise an influence upon law, we shall expect to see the legal position of women changed in accordance with certain general principles outlined above, viz: I. That inasmuch as Adam was formed before Eve and as women are the weaker vessels, they should confine themselves to those duties only which society has, from time immemorial, assigned them as their peculiar sphere. II. They should be meek, and not oppose father or husband; and to these they should go for advice on all matters. III. All license, such as the Roman woman's right of taking the initiative in a divorce, must never be tolerated. IV. They should never transgress the bounds of strictest decorum in conduct and dress, lest they seduce men; and they must never be conspicuous in public or attempt to perform public functions. V. They are to be given due honour and are to be cared for properly.
The legal rights of women would be affected,
moreover, by a difference in the spirit of the law.
The Roman jurist derived his whole sanction from
reason and never allowed religious considerations,
as such, to influence him when legislating on
women. He recognised that laws are not immutable,
but must be changed to fit the growth
of equity and tolerance. No previous authority
was valid to him if reason suggested that the
authority's dictum had outlived its usefulness and
must be adapted to larger ideas. It never occurred
to him to make the inferiority of woman an act of
God. On the other hand, the Church referred
everything to one unchanging authoritative source,
the Gospels and the writings of the Apostles; faith
and authority took the place of reason; and any
attempt to question the injunctions of the Bible
was regarded as an act of impiety, to be punished
accordingly. And as the various regulations
about women had now a divine sanction,
the permanence of these convictions was doubly
assured.
SOURCES
I. The Bible.
II. Patrologia Latina: edidit J.P. Migne. Parisiis. 221
volumes (finished 1864).