Project Gutenberg's A Short History of Women's Rights, by Eugene A. Hecker This eBook is for the use of anyone anywhere at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of the Project Gutenberg License included with this eBook or online at www.gutenberg.org Title: 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. Author: Eugene A. Hecker Release Date: March 22, 2004 [EBook #11672] Language: English Character set encoding: ISO-8859-1 *** START OF THIS PROJECT GUTENBERG EBOOK A SHORT HISTORY OF WOMEN'S RIGHTS *** Produced by Ted Garvin, Wilelmina Mallière and PG Distributed Proofreaders 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 SECOND EDITION REVISED, WITH ADDITIONS To MY MOTHER PREFACE TO THE SECOND EDITION In this edition a chapter has been added, bringing down to date the record of the contest for equal suffrage. The summary on pages 175-235 is now largely obsolete; but it has been retained as instructive evidence of the rapid progress made during the last four years. E.A.H. CAMBRIDGE, MASS. August, 1914. PREFACE While making some researches in the evolution 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 information which is absorbed by those who have no time to make investigations for themselves. Accordingly, in order to present an accurate historical 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 no secondhand 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 lights 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 women'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 development. E.A.H. CAMBRIDGE, MASS., 1910. CONTENTS CHAPTER I WOMEN'S RIGHTS UNDER ROMAN LAW, 27 B.C.-527 A.D. Originally women were always under guardianship—But under the Empire the entire equality of the sexes was recognised—Women in marriage—Their power over their property—Divorce—Women engaged in all business pursuits—Instances of women suing and pleading in law—Partiality of the law towards women—Rights of inheritance —Rights to higher education fully allowed—Provision made for poor children to be educated—The Vestals—Female slaves—Remarkable growth of humanitarianism towards slaves under the Empire—Sources CHAPTER II WOMEN AND THE EARLY CHRISTIAN CHURCH Christ laid down ethical principles but not minute regulations—The Apostles affected by Jewish and Oriental or Greek conceptions of women—Examples of these—St. Paul and St. Peter on the position of women—The Church Fathers elaborated these teachings—Examples of their contempt for women—Mingled with admiration for particular types of women—Their views of marriage—Their strictures on unbecoming dress—Summary of their views and how the status of women was affected by them—Sources CHAPTER III RIGHTS OF WOMEN AS MODIFIED BY THE CHRISTIAN EMPERORS Old Roman Law not abrogated suddenly—Divorce—Adultery—Second marriages—Engagements—Donations between husband and wife—Sundry enactments on marriage—Inheritance—Guardianship—Bills of Attainder of Christian Emperors merciless, in contrast to acts of pagan predecessors—Sources CHAPTER IV WOMEN AMONG THE GERMANIC PEOPLES A second world force to modify the status of women—Accounts of Caesar and Tacitus on position of women among Germanic peoples—The written laws of the barbarians—Guardianship—Marriage—Power of the husband—Divorce —Adultery—The Church indulgent to kings—Remarriage—Property rights—Peculiarities of the criminal law— Minutely-graded fines—Compurgation and ordeals—Innocence tested by the woman walking over red-hot ploughshares—Women in slavery—Comparison of position of women under Roman and under Germanic laws— Influence of theology—Sources CHAPTER V DIGRESSION ON THE LATER HISTORY OF ROMAN LAW Explanation of the various social and political forces which affected the position of women in the Middle Ages CHAPTER VI THE CANON LAW AND THE ATTITUDE OF THE ROMAN CATHOLIC CHURCH Canon law reaffirms the subjection of women—Women and marriage—Protection to women—Divorce—Cardinal Gibbons on protection of injured wives by Popes—Catholic Church has no divorce—But it allows fourteen reasons for declaring marriage null and void and leaving a husband or wife free to remarry—Some of these explained—Diriment impediments and dispensations—Historical instances of the Roman Church's inconsistency—Attitude towards women at present day—Opinions of Cardinals Gibbon and Moran, and Rev. David Barry and Rev. William Humphrey— Sources CHAPTER VII WOMEN'S RIGHTS IN ENGLAND Single women have always had private rights—But males preferred in inheritance—Examples—Power of parents— Husband and wife—Wife completely controlled by husband—He could beat her and own all her property—Recent abrogation of the husband's power—Divorce—Jeremy Taylor and others on duty of women to bear husband's sins with meekness—Injustice of the present law of divorce—Rape and the age of legal consent—Progress of the rights to an education—Women in the professions—Woman suffrage—Sources CHAPTER VIII WOMEN'S RIGHTS IN THE UNITED STATES Examples of the early opposition to women's rights—Age of consent—Single women—History of agitation for women's rights—Convention of 1848—Progress after the Civil War—Beginnings of higher education—First women in medicine—And in law, the ministry, journalism, and industry—Status of women in all the States in 1910—Sources CHAPTER IX GENERAL CONSIDERATIONS The five arguments commonly used against equal suffrage—The theological—The physiological—The social or political —The intellectual—The moral—Lecky on the nature of women—The old and the new conception—Thomas on the power of custom—Taboo—All evolution accompanied by some extravagance—Macaulay on liberty—The double standard of morality—Co-operation—The proper sphere for a human being—Discrepancies of wages—Legal Guardianship. Digression on the growth of respect for women evolution in the interpretation of labour laws—The alarmist view of divorce CHAPTER X FURTHER CONSIDERATIONS The rapid spread of suffrage throughout the world—Table of suffrage gains from early times to present date—In national politics in the United States—Attack on the suffrage parade and colloquy between Mr. Hobson and Mr. Mann on the subject—Suffrage amendment defeated in the Senate—Mr. Heflin's remarks in the House—Mr. Falconer replies —President Wilson refuses to take a stand—Amendment lost—Mr. Bryan on suffrage—Examples of legislation to protect women passed recently—The tendency is to complete equality of the sexes—Suffrage in England—A delayed reform in divorce—Women's rights on the Continent—Especially in Germany—Schopenhauer's views of women— Further remarks on the philosophy of suffrage—"Woman's sphere"—Ultimate results of women entering all businesses and professions—Feminism—The home is not necessarily every woman's sphere and neither is motherhood nor is it her congenital duty to make herself attractive to men—Unreasonableness of gratuitous advice to women and none to men —What we don't know—Fallacy of the argument that the fall of the Roman Empire was due to the liberty given to woman—Official organs of various suffrage societies INDEX 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] However, she was by no means allowed 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 guardian[3]; if the woman was married, the power belonged to the husband. The consent of such supervision, whether of father, husband, or guardian, was essential, as Ulpian informs us,[4] 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. Throughout her life a woman was supposed to remain absolutely under the power[5] 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.[6] The reason that women were so subjected to guardianship was "on account of their unsteadiness of character,"[7] "the weakness of the sex," and their "ignorance of legal matters."[8] Under certain circumstances, however, women became sui iuris or entirely independent: I. By the birth of three children (a freedwoman by four)[9]; II. By becoming a Vestal Virgin, of whom there were but six[10]; III. By a formal emancipation, which took place rarely, and then often only with a view of transferring the power from one guardian to another.[11] Even when sui iuris a woman could not acquire power over any one, not even over her own children[12]; 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 children an account of any property which she had managed for them.[13] On the other hand, her children were bound to support her.[14] So much for the laws on the subject. They seem rigorous enough, and in early times were doubtless executed with strictness. A marked feature, however, of the Roman character, a peculiarity which at once 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 influence wielded by women[15] 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.[16] Valerius Maximus tells us that Egnatius Mecenas, a Roman knight, beat his wife to death for drinking wine.[17] Cato the Censor (234-149 B.C.) dilated with joy on the fact that a woman could be condemned to death by her husband for adultery without a public trial, whereas men were allowed any number of infidelities without censure.[18] The senator Decay of the power or the guardian. Women and marriage. Metellus (131 B.C.) lamented that Nature had made it necessary to have women.[19] 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,[20] "'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 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.[21] 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.[22] 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.[23] The masterly and sympathetic delineation of Dido in the Aeneid shows how deeply a Roman could appreciate the character 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.[24] Such are a few examples of the growth of respect for women; and we should naturally conclude that, as time progressed, the unjust laws of guardianship would no longer 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 enforced. 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 Gaius[25] in the second century, "seems to have no valid reason as foundation. For what is commonly believed, to the effect that on account of unsteadiness of character they are generally 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."[26] 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 investigate 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 young; twelve years were required by custom for her to reach the marriageable age.[27] In the earlier period a woman was acquired as wife in three different ways: I. By coemptio—a mock sale to her husband[28]; II. By confarreatio—a solemn marriage with peculiar sacred rites to qualify men and women and their children for certain priesthoods[29]; 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.[30] 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.[31] A man could marry even if not present personally; a woman could not.[32] The woman's parents or guardians were accustomed to arrange a match for her,[33] as they still do in many parts of Europe. Yet the power of the father to coerce his daughter was limited. Her consent was important. "A marriage cannot exist," remarks Paulus, "unless all parties consent."[34] Julianus writes also that the daughter must give her permission[35]; 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."[36] The son had an advantage here, because he could never be forced into a marriage against his will.[37] The consent of the father was always necessary for a valid marriage.[38] He could not by will compel his daughter to marry a certain person.[39] 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.[40] A father was not permitted to break up a harmonious[41] marriage; he could not get back his daughter's dowry without her consent,[42] nor force her to return to her husband after a divorce[43]; and he was punished with loss of citizenship if he made a match for a widowed daughter before the legal time of mourning for her husband had expired.[44] 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 circumstances a daughter must not only show respect for her father, but also furnish him with the necessaries of life if he needed them.[45] "Breach of Promise." Husband and Wife. Under the Empire no such thing as a "breach of promise" suit was permitted, although in the days of the Republic the party who broke a promise to marry had been liable to a suit for damages.[46] But this had now disappeared, and either party could break off the betrothal at pleasure without prejudice.[47] Whatever gifts had been given might be demanded back.[48] The engagement had to be formally broken off before either party could enter into marriage or betrothal with another; otherwise he or she lost civil status.[49] While an engagement lasted, the man could bring an action for damages against any one who insulted or injured his fiancée.[50] The Roman marriage was a purely civil contract based on consent.[51] The definition given by the law was a noble one. "Marriage is the union of a man and a woman and a partnership of all life; a mutual sharing of laws human and divine."[52] The power of the husband over the wife was called manus; and the wife stood in the same position as a daughter.[53] No husband was allowed to have a concubine.[54] He was bound to support his wife adequately, look out for her interests,[55] and strictly to avenge any insult or injury offered her[56]; any abusive treatment of the wife by the husband was punished by an action for damages[57]. A wife was compelled by law to go into solemn mourning for a space of ten months upon the death of a husband[58]. During the period of mourning she was to abstain from social banquets, jewels, and crimson and white garments[59]. 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.[60] But a husband was not compelled to do any legal mourning for the death of his wife.[61] 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 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 completely their own property.[62] 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."[63] "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."[64] "It is just that the income of the dowry belong to the husband; for inasmuch as it is he who stands the burdens of the married state, it is fair that he also acquire the interest."[65] "Nevertheless, the dowry belongs to the woman, even though it is in the goods of the husband."[66] "A husband is not permitted to alienate his wife's estate against her will."[67] 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.[68] Then as now, a man might put his property in his wife's name to escape his creditors,[69]—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 profecticia) returned to the latter; but if any one else had given it (dos adventicia), 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),[70] In the case of a dowry of the first kind, the husband might retain what he had expended for his wife's funeral.[71] The dowry was confiscated to the state if the woman was convicted of lèse majesté, violence against the state, or murder.[72] 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.[73] 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.[74] 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. Gifts between husband and wife were nevertheless valid under certain conditions. It was permissible to make a present of clothing and to bestow various tokens of affection, such as ornaments. The husband could present his wife with enough money to rebuild a house of hers which had burned.[75] The Emperor Marcus Aurelius permitted a wife to give her husband the sum necessary to obtain public office or to become a senator or knight or to give public games.[76] A gift was also legal if made by the husband in apprehension that death might soon overtake him; if, for instance, he was very sick or was setting out to war, or to exile, or on a dangerous journey.[77] The point in all gifts was, that neither Divorce party should become richer by the donation.[78] Some further considerations of the relation of husband and wife will aid in setting forth the high opinion which Roman law entertained of marriage and its constant effort to protect the wife as much as possible. A wife could not be held in a criminal action if she committed theft against her husband. The various statements of the jurists make the matter clear. Thus Paulus[79]: "A special action for the recovery of property removed [rerum amotarum iudicium] has been introduced against her who was a wife, because it has been decided that it is not possible to bring a criminal action for theft against her [quid non placuit cum ea furti agere posse]. Some—as Nerva Cassius—think she cannot even commit theft, on the ground that the partnership in life made her mistress, as it were. Others—like Sabinus and Proculus —hold that the wife can commit theft, just as a daughter may against her father, but that there can be no criminal action by established law." "As a mark of respect to the married state, an action involving disgrace for the wife is refused."[80] "Therefore she will be held for theft if she touches the same things after being divorced. So, too, if her slave commits theft, we can sue her on the charge. But it is possible to bring an action for theft even against a wife, if she has stolen from him whose heirs we are or before she married us; nevertheless, as a mark of respect we say that in each case a formal claim for restitution alone is admissible, but not an action for theft."[81] "If any one lends help or advice to a wife who is filching the property of her husband, he shall be held for theft. If he commits theft with her, he shall be held for theft, although the woman herself is not held."[82] A husband who did not avenge the murder of his wife lost all claims to her dowry, which was then confiscated to the state; this by order of the Emperor Severus.[83] The laws on adultery are rather more lenient to the woman than to the man. In the first place, the Roman law insisted that it was unfair for a husband to demand chastity on the part of his wife if he himself was guilty of infidelity or did not set her an example of good conduct,[84]—a maxim which present day lawyers may reflect upon with profit. A father was permitted to put to death his daughter and her paramour if she was still in his power and if he caught her in the act at his own house or that of his son-in-law; otherwise he could not.[85] He must, however, put both man and woman to death at once, when caught in the act; to reserve punishment to a later date was unlawful. The husband was not permitted to kill his wife; he might kill her paramour if the latter was a man of low estate, such as an actor, slave, or freedman, or had been convicted on some criminal charge involving loss of citizenship.[86] The reason that the father was given the power which was denied the husband was that the latter's resentment would be more likely to blind his power of judging dispassionately the merits of the case.[87] If now the husband forgot himself and slew his wife, he was banished for life if of noble birth, and condemned to perpetual hard labour if of more humble rank.[88] He must at once divorce a wife guilty of adultery; otherwise he was punished as a pander, and that meant loss of citizenship.[89] Women convicted of adultery were, when not put to death, punished by the loss of half their dowry, a third part of their other goods, and relegation to an island; guilty men suffered the loss of half of their possessions and similar relegation to an island; but the guilty parties were never confined in the same place.[90] We have mention also in several writers of some curious and vicious punishments that might be inflicted on men guilty of adultery.[91] Now, all this seems rigorous enough; but, as I have already remarked, we must beware of imagining that a statute is enforced simply because it stands in the code. As a matter of fact, public sentiment had grown so humane in the first three centuries after Christ that it did not for a moment tolerate that a father should kill his daughter, no matter how guilty she was; and in all our records of that period no instance occurs. As to husbands, we have repeated complaints in the literature of the day that they had grown so complaisant towards erring wives that they could not be induced to prosecute them.[92] A typical instance is related by Pliny.[93] Pliny was summoned by the Emperor Trajan to attend a council where, among other cases, that of a certain Gallitta was discussed. She had married a military tribune and had committed adultery with a common captain (centurio). Trajan sent the captain into exile. The husband took no measures against his wife, but went on living with her. Only by coercion was he finally induced to prosecute. Pliny informs us that the guilty woman had to be condemned, even against the will of her accuser. A woman guilty of incest received no punishment, but the guilty man was deported to an island.[94] If the incest involved adultery, the woman was of course held on that charge. 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 Property rights of widows and single women. 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 in business pursuits. The right of women to sue. Instances of women pleading in public and suing. Partiality of the law to women. Rights of women to inherit. 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 Protection of property of children. 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. Here the powers of women to inherit stopped. Bey...