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. Second Edition Revised, With Additions.

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]

A year and six months must elapse after a divorce before the woman was allowed to marry again.^[107] If at the time of the divorce she was pregnant, her husband was obliged to support her offspring, provided that within thirty days after the separation she informed him of her condition.^[108] She could sue her former husband for damages if he insulted her.^[109] Whether the children should stay with the mother or father was left to the discretion of the judge.^[110]

The married woman had, as I have shown, complete disposal of her own property. Let us see next what rights those women had over their possessions who were widows or spinsters.

Roman Law constantly strove to protect the children and laid it down as a maxim that the property of their parents belonged to them.^[111] A widow could not therefore, except by special permission from the emperor,^[112] be the legal guardian of her children, but must ask the court to appoint one upon the death of her husband.^[113] This was to prevent possible mismanagement and because "to undertake the legal defence of others is the office of men."^[114] But she was permitted to assume complete charge of her children's property during their minority and enjoy the usufruct; only she must render an account of the goods when the children arrived at maturity.^[115] We have many instances of women who managed their children's patrimony and did it exceedingly well. "You managed our patrimony in such wise," writes Seneca to his mother,^[116] "that you exerted yourself as if it were yours and yet abstained from it as if it belonged to others."^[117] Agricola, father-in-law of Tacitus, had such confidence in his wife's business ability that he made her co-heir with his daughter and the Emperor Domitian.^[118] A mother could get an injunction to restrain extravagance on the part of her children.^[119] Women could not adopt.^[120]

Married women, spinsters, and widows had as much freedom as men in disposing of property by will. If there were children, the Roman law put certain limitations on the testator's powers, whether man or woman. By the Falcidian Law no one was allowed to divert more than three fourths of his estate from his (or her) natural heirs.^[121] But for any adequate cause a woman could disinherit her children completely; and there are many instances of this extant both in the Law Books and in the literature of the day.^[122]

Single women had grown absolutely unshackled and even their guardians had become a mere formality, as the words of Gaius, already quoted (page 8) prove. That they had complete disposal of their property is proved furthermore by the numerous complaints in Roman authors about the sycophants who flattered and toadied the wealthy ladies with an eye to being remembered in their wills.^[123] For it is evident that if these women had not had the power freely to dispose of their own property, there would have been no point in paying them such assiduous court. The legal age of maturity was now twenty-five for both male and female.

Women engaged freely in all business pursuits. We find them in all kinds of retail trade and commerce,^[124] as members of guilds,^[125] in medicin^[126] innkeeping,^[127] in vaudevil^[128]; there were even female barbers^[129] and charioteer^[130] Examples of women who toiled for a living with their own hands are indeed very old, as the widow, described by Homer, who worked for a scanty wage to support her fatherless children, or the wreathmaker, mentioned by Aristophanes.^[131] But such was the case only with women of the lower classes; the lady of high birth acted through her agents.^[132]

When so many women were engaged in business, occasions for lawsuits would naturally arise; we shall see next what power the woman had to sue. It was a standing maxim of the law that a woman by herself could not conduct a case in court.^[133] She had to act through her agent, if she was independent, otherwise through her guardian. The supreme judge at Rome and the governor in a province assigned an attorney to those who had no agent or guardian.^[134] But in this case again custom and the law were at variance. Various considerations will make it clear that women who sued had, in practice, complete disposal of the matter. I.—A woman who was still under the power of her father must, according to law, sue with him as her agent or appoint an agent to act with him. Nevertheless, a father could do nothing without the consent of his daughter.^[135] Obviously, then, so far as the power of the father was concerned, a woman had practically the management of her suit. II.—The husband had no power. If he tried to browbeat her as to what to do, she could send him a divorce, a privilege which she had at her beck and call, as we have seen; and then she could force him to give her any guardian she wanted.^[136] III.—That the authority of other guardians was in practice a mere formality, I have already proved (pp. 7 and 8).

From these considerations it is clear that the woman's wishes were supreme in the conduct of any suit. Moreover, the law expressly states that women may appoint whatever attorneys or agents they desire, without asking the consent of their legal guardians^[137]; and thus they were at liberty to select a man who would manage things as they might direct. There were cases where even the strict letter of the law permitted women to lay an action on their own responsibility alone: if, when a suit for recovery of dowry was brought, the father was absent or hindered by infirmities^[138]; if the woman sued or was sued to get or render an account of property managed in trust^[139]; to avenge the death of a parent or children, or of patron or patroness and their children^[140]; to lay bare any matter pertaining to the public grain supply^[141]; and to disclose cases of treason.^[142]

We read of many cases of women pleading publicly and bringing suit. Indeed, according to Juvenal—who is, however, a pessimist by profession—the ladies found legal proceedings so interesting that bringing suit became a passion with them as strong as it had once been among the Athenians. Thus Juvenal^[143]: "There is almost no case in which a woman wouldn't bring suit. Manilia prosecutes, when she isn't a defendant. They draw up briefs quite by themselves, and are ready to cite principles and authorities to Celsus [a celebrated lawyer of that time]." Of pleading in public one of the celebrated instances was that of Hortensia, daughter of the great orator Quintus Hortensius, Cicero's rival. On an occasion when matrons had been burdened with heavy taxes and none of their husbands would fight the measure, Hortensia pleaded the case publicly with great success. All writers speak of her action and the eloquence of her speech with great admiration.^[144] We hear also of a certain Gaia Afrania, wife of a Senator; she always conducted her case herself before the supreme judge, "not because there was any lack of lawyers," adds her respectable and scandalised historian,^[145] "but because she had more than enough of impudence."

Quintilian mentions several cases of women being sued^[146]; Pliny tells how he acted as attorney for some^[147]; and the Law Books will supply any one curious in the matter with abundant examples.^[148] A quotation from Pliny^[149] will give an idea of the kind of suit a woman might bring, and the great interest aroused thereby: "Attia Viriola, a woman of illustrious birth and married to a former supreme judge, was disinherited by her eighty-year-old father within eleven days after he had brought Attia a stepmother. Attia was trying to regain her share of her father's estate. One hundred and eighty jurors sat in judgment. The tribunal was crowded, and from the higher part of the court both men and women strained over the railings in their eagerness to hear (which was difficult), and to see (which was easy)."

There were many legal qualifications designed to help women evade the strict letter of the law when this, if enforced absolutely, would work injustice. Ignorance of the law, if there was no criminal offence involving good morals, was particularly accepted in the case of women "on account of the weakness of the sex."^[150] A typical instance of the growth of the desire to help women, protect them as much as possible, and stretch the laws in their favour, may be taken from the senatorial decree known as the Senatus Consultum Velleianum.^[151] This was an order forbidding females to become sureties or defendants for any one in a contract. But at the end of the first century of our era the Senate voted that the law be emended to help women and to give them special privileges in every class of contract. "We must praise the farsightedness of that illustrious order," comments the great jurist Ulpian,^[152] "because it brought aid to women on account of the weakness of the sex, exposed, as it is, to many mishaps of this sort."

The rights of women to inherit under Roman law deserve some mention. Here again we may note a steady growth of justice. Some general examples will make this clearer, before I treat of the specific powers of inheritance. I.—In the year 169 B.C. the Tribune Quintus Voconius Saxa had a law passed which restricted greatly the rights of women to inherit.^[153] According to Dio^[154] no woman was, by this statute, permitted to receive more than 25,000 sesterces—1250 dollars. In the second century after Christ, this law had fallen into complete desuetude.^[155] II.—By the Falcidian Law, passed in the latter part of the first century B.C., no citizen was allowed to divert more than three fourths of his estate from his natural heirs.^[156] The Romans felt strongly against any man who disinherited his children without very good reason; the will of such a parent was called inofficiosum, "made without a proper feeling of duty," and the disinherited children had an action at law to recover their proper share.^[157] A daughter was considered a natural heir no less than a son and had equal privileges in succession^[158]; and so women were bound to receive some inheritance at least. III.—It is a sad commentary on Christian rulers that for many ages they allowed the crimes of the father to be visited upon his children and by their bills of attainder confiscated to the state the goods of condemned offenders. Now, the Roman law stated positively that "the crime or punishment of a father can inflict no stigma on his child."^[159] So far as the goods of the father were concerned, the property of three kinds of criminals escheated to the crown: (1) those who committed suicide while under indictment for some crime,^[160] (2) forgers,^[161] (3) those guilty of high treason^[162]. Yet it seems reasonable to doubt whether these laws were very often carried out strictly to the letter. For example, the law did indeed hold that the estate of a party guilty of treason was confiscated to the state^[163]; but even here it was expressly ordained that the goods of the condemned man's freedmen be reserved for his children.^[164] Moreover, in actual practice we can find few instances where the law was executed in its literal severity even under the worst tyrants. It was Julius Caesar who first set the splendid example of allowing to the children of his dead foes full enjoyment of their patrimonies.^[165] Succeeding emperors followed the precedent.^[166] Tyrants like Tiberius and Nero, strangely enough, in a majority of cases overruled the Senate when it proposed to confiscate the goods of those condemned for treason, and allowed the children a large part or all of the paternal estate.^[167] Hadrian gave the children of proscribed offenders the twelfth part of their father's goods.^[168] Antoninus Pius gave them all.^[169] There was a strong public feeling against bills of attainder and this sentiment is voiced by all writers of the Empire. The law forbade wives to suffer any loss for any fault of their husbands.^[170]

Since we have now noticed that women could inherit any amount, that they were bound to receive something under their fathers' wills, and that the guilt of their kin could inflict no prejudice upon them in the way of bills of attainder involving physical injury or civil status and, in practice, little loss so far as inheriting property was concerned, we may pass to a contemplation of the specific legal rights of inheritance of women.

If women were to be disinherited, it was sufficient to mention them in an aggregate; but males must be mentioned specifically.^[171] If, however, they were disinherited in an aggregate (inter ceteros), some legacy had to be left them that they might not seem to have been passed over through forgetfulness.^[172] I shall not concern myself particularly with testate succession, because here obviously the will of the testator could dispose as he wished, except in so far as he was limited by the Falcidian Law. The matter of intestate succession may well claim our attention; for therein we shall see what powers of inheritance were given the female sex. The general principles are explained by Gaius (iii, 1-38); and these principles followed, in the main, the law as laid down in the Twelve Tables (451 B.C.). According to these, the estates of those who died intestate belonged first of all to the children who were in the power of the deceased at the time of his death; there was no distinction of sex; the daughters were entitled to precisely the same amount as the sons.^[173] If the children of the testator had died, the grandson or granddaughter through the son succeeded; or the great-grandson or great-granddaughter through the grandson. If a son a daughter were alive, as well as grandsons and granddaughters through the son, they were all equally called to the estate. The estate was not divided per capita, but among families as a whole; for example, if of two sons one only was alive, but the other had left children, the testator's surviving son received one half of the patrimony and his grandchildren through his other son the other half, to be divided among them severally. If, then, there were six grandchildren, each received one twelfth of the estate.

In the days of the Empire some attempts were made to be more just. It was enacted^[174] that all the children should be called to the estate, whether they had been under the power of the testator at the time of his death or not; and female relatives were now allowed to come in for their share "in the third degree," that is, if there was neither a child or an agnate surviving. This was not much of an improvement; and the principle of agnate succession is the only point in which Roman law failed to give to women those equal rights which it allowed them in other cases.

There is no point on which Roman law laid more stress than that the children, both male and female, were to be constantly protected and must receive their legal share of their father's or mother's goods. After a husband's divorce or death his wife could, indeed, enjoy possession of the property and the usufruct; but the principal had to be conserved intact for the children until they arrived at maturity. In the same way a father was obliged to keep untouched for the children whatever had been left them by the mother on her decease^[175]; and he must also leave them that part, at least, of his own property prescribed by the Falcidian Law. A case—and it was common enough in real life— such as that described by Dickens in David Copperfield, where, by the English law, a second husband acquired absolute right over his wife's property and shut out her son, would have been impossible under Roman law. Neither husband nor wife could succeed to one another's intestate estate absolutely unless there were no children, parents, or other relatives living.^[176]

Rape of a woman was punished by death; accessories to the crime merited the same penalty.^[177] Indecent exposure before a virgin met with punishment out of course.^[178] Kidnapping was penalised by hard labour in the mines or by crucifixion in the case of those of humble birth, and by confiscation of half the goods and by perpetual exile in the case of a noble.^[179] Temporary exile was visited upon those guilty of abortion themselves^[180]; if it was caused through the agency of another, the agent, even though he or she did so without evil intent, was punished by hard labour in the mines, if of humble birth, and by relegation to an island and confiscation of part of their goods, if of noble rank.^[181] If the victim died, the person who caused the abortion was put to death.^[182]

The rights of women to an education were not questioned. That Sulpicia could publish amatory poems in honour of her husband and receive eulogies from writers like Martial^[183] shows that she and ladies like her occupied somewhat the same position as Olympia Morata and Tarquinia Molza later in Italy during the Renaissance, or like some of the celebrated Frenchwomen, such as Madame de Staël. Seneca addresses a Dialogue on Consolation to one Marcia; such an idea would have made the hair of any Athenian gentleman in the time of Socrates stand on end. Aspasia was obliged to be a courtesan in order to become educated and to frequent cultivated society^[184]; Sulpicia was a noble matron in good standing. The world had not stood still since Socrates had requested some one to take Xanthippe home, lest he be burdened by her sympathy in his last moments. Pains were taken that the Roman girl of wealth should have special tutors.^[185] "Pompeius Saturninus recently read me some letters," writes Pliny^[186] to one of his correspondents, "which he insisted had been written by his wife. I believed that Plautus or Terence was being read in prose. Whether they are really his wife's, as he maintains; or his own, which he denies; he deserves equal honour, either because he composes them, or because he has made his wife, whom he married when a mere girl, so learned and polished." The enthusiasm of the ladies for literature is attested by Persius.^[187]

According to Juvenal, who, as an orthodox satirist, was not fond of the weaker sex, women sometimes became over-educated. He growls as follows^[188]: "That woman is a worse nuisance than usual who, as soon as she goes to bed, praises Vergil; makes excuses for doomed Dido; pits bards against one another and compares them; and weighs Homer and Maro in the balance. Teachers of literature give way, professors are vanquished, the whole mob is hushed, and no lawyer or auctioneer will speak, nor any other woman." The prospect of a learned wife filled the orthodox Roman with peculiar horror.^[189] No Roman woman ever became a public professor as did Hypatia or, ages later, Bitisia Gozzadina, who, in the thirteenth century, became doctor of canon and civil law at the University of Bologna.

I have been speaking of women of the wealthier classes; but the poor were not neglected. As far back as the time of the Twelve Tables—450 B.C.—parents of moderate means were accustomed to club together and hire a schoolroom and a teacher who would instruct the children, girls no less than boys, in at least the proverbial three R's. Virginia was on her way to such a school when she encountered the passionate gaze of Appius Claudius. Such grammar schools, which boys and girls attended together, flourished under the Empire as they had under the Republic.^[190] They were not connected with the state, being supported by the contributions of individual parents. To the end we cannot say that there was a definite scheme of public education for girls at the state's expense as there was for boys.^[191] Still, the emperors did something. Trajan, Hadrian, Antoninus Pius, Marcus Aurelius, and Alexander Severus, for example, regularly supplied girls and boys with education at public expense^[192]; under Trajan there were 5000 children so honoured. Public-spirited citizens were also accustomed to contribute liberally to the same cause; Pliny on one occasion^[193] gave the equivalent of $25,000 for the support and instruction of indigent boys and girls.

It may not be out of place to speak briefly of the Vestal Virgins, the six priestesses of Vesta, who are the only instances in pagan antiquity of anything like the nuns of the Christians. The Vestals took a vow of perpetual chastity.^[194] They passed completely out of the power of their parents and became entirely independent. They could not receive the inheritance of any person who died intestate, and no one could become heir to a Vestal who died intestate. They were allowed to be witnesses in court in public trials, a privilege denied other women. Peculiar honour was accorded them and they were regularly appointed the custodians of the wills of the emperors.^[195]

The position of women in slavery merits some attention, in view of the huge multitudes that were held in bondage. Roman law acknowledged no legal rights on the part of slaves^[196]. The master had absolute power of life and death.^[197] They were exposed to every whim of master or mistress without redress.^[198] If some one other than their owner harmed them they might obtain satisfaction through their master and for his benefit; but the penalty for the aggressor was only pecuniary.^[199] A slave's evidence was never admitted except under torture.^[200] If a master was killed, every slave of his household and even his freedmen and freedwomen were put to torture, although the culprit may already have been discovered, in order to ascertain the instigator of the plot and his remotest accessories.^[201]

The earlier history of Rome leaves no doubt that before the Republic fell these laws were carried out with inhuman severity. With the growth of Rome into a world power and the consequent rise of humanitarianism^[202] a strong public feeling against gratuitous cruelty towards slaves sprang up. This may be illustrated by an event which happened in the reign of Nero, in the year 58, when a riot ensued out of sympathy for some slaves who had been condemned en masse after their master had been assassinated by one of them.^[203] Measures were gradually introduced for alleviating the hardships and cruelties of slavery. Claudius (41-54 A.D.) ordained^[204] that since sick and infirm slaves were being exposed on an island in the Tiber sacred to Aesculapius, because their masters did not wish to bother about attending them, all those who were so exposed were to be set free if they recovered and never to be returned into the power of their masters; and if any owner preferred to put a slave to death rather than expose him, he was to be held for murder. Gentlemen began to speak with contempt of a master or mistress who maltreated slaves.^[205] Hadrian (117-138 A.D.) modified the old laws to a remarkable degree: he forbade slaves to be put to death by their masters and commanded them to be tried by regularly appointed judges; he brought it about that a slave, whether male or female, was not to be sold to a slave-dealer or trainer for public shows without due cause; he did away with ergastula or workhouses, in which slaves guilty of offences were forced to work off their penalties in chains and were confined to filthy dungeons; and he modified the law previously existing to the extent that if a master was killed in his own house, the inquisition by torture could not be extended to the whole household, but to those only who, by proximity to the deed, could have noticed it.^[206] Gaius observes^[207] that for slaves to be in complete subjection to masters who have power of life and death is an institution common to all nations, "But at this time," he continues, "it is permitted neither to Roman citizens nor any other men who are under the sway of the Roman people to vent their wrath against slaves beyond measure and without reason. In fact, by a decree of the sainted Antoninus (138-161 A.D.) a master who without cause kills his slave is ordered to be held no less than he who kills another's slave.^[208] An excessive severity on the part of masters is also checked by a constitution of the same prince. On being consulted by certain governors about those slaves who rush for refuge to the shrines of the gods or the statues of emperors, he ordered that if the cruelty of masters seemed intolerable they should be compelled to sell their slaves." Severus ordained that the city prefect should prevent slaves from being prostituted^[209]. Aurelian gave his slaves who had transgressed to be heard according to the laws by public judges^[210]. Tacitus procured a decree that slaves were not to be put to inquisitorial torture in a case affecting a master's life, not even if the charge was high treason^[211]. So much for the laws that mitigated slavery under the Empire. They were not ideal; but they would in more respects than one compare favourably with the similar legislation that was in force, prior to the Civil War, in the American Slave States.

SOURCES

I. Iurisprudentiae Anteiustinianae quae Supersunt. ed. Ph. Eduardus Huschke. Lipsiae (Teubner), 1886 (fifth edition).

II. Codex Iustinianus. Recensuit Paulus Krueger. Berolini apud Weidmannos, 1877.

Corpus Iuris Civilis: Institutiones recognovit Paulus Krueger; Digesta recognovit Theodorus Mommsen. Berolini apud Weidmannos, 1882.

Novellae: Corpus Iuris Civilis. Volumen Tertium recognovit Rudolfus Schoell; Opus Schoellii morte interceptum absolvit G. Kroll. Berolini apud Weidmannos, 1895.

III. The Fragments of the Perpetual Edict of Salvius Julianus. Edited by Bryan Walken Cambridge University Press. 1877.

IV. Pomponii de Origine Iuris Fragmentum: recognovit Fridericus Osannus. Gissae, apud Io. Rickerum, 1848.

XXI. Scriptores Historiae Augustae: edidit Hermannus Peter. Lipsiae (Teubner), 1888.