ROMAN LAW, ROMAN WOMEN, AND CHRISTIANITY
The far-reaching results of the various schools of philosophy which
rose in Greece during the Periclean age will be noted in this chapter.
That the principles involved in this philosophy may not have been
formulated by the hetairai of Athens is doubtless true, yet that the
inception and development of these principles were largely due to
the freedom of these gifted women seems probable, especially when we
remember the conditions under which this philosophy arose.
A glance at the principles involved in the Stoic philosophy will show
its thoroughly altruistic character. The sum of its tenets was to “live
according to nature’s laws,” to subordinate one’s self to the welfare
of one’s family, one’s country, and the entire race, and to “rise
above the gross indulgences and pleasures of the vulgar” to higher
laws of thought and action; it taught that to be just, and to live
according to the dictates of reason rather than to be governed by the
promptings of blind passion and the desire of the appetites, should
be not only the duty but the highest pleasure of mankind. Possibly
some of the minor precepts of the Stoic philosophy were absurd; no
doubt in their desire for reform, its founders set up a canon of
conduct which was severe and impracticable; but its fundamental
principles, the subjection of the animal in man to the reasoning
faculties, as applied to future Roman law, Roman civilization, and
Roman character, served to produce specimens of manhood which the women
of all subsequent ages should delight to honour. So long as virtue is
applauded and moral greatness is exalted, the enactments of the Roman
jurisconsults in the interest of women, prior to, and during the time
of the Antonine Cæsars, will stand forth throughout the ages as the
one single movement, during thousands of years, toward the removal
of the legal disabilities of women. When we remember that the Stoic
philosophy took root and flourished during an age of unparalleled
profligacy which was stimulated and encouraged by the example of the
most opulent and luxurious personages among the Greeks, and at a time
when licentiousness had for centuries been sanctioned by religion and
upheld by laws made by the men of Greece, it is quite evident that some
potent influence, which had hitherto been unfelt, had been in operation
to produce it.
In order to understand the influence which the Stoic philosophy exerted
on civilization, and especially on the legal position of women, we
must first understand its effect upon Roman law. An inquiry into the
changes which had been wrought in Roman jurisprudence at the time of
the Antonine Cæsars, by engrafting upon it the underlying principles
contained in the Stoic philosophy, discloses the fact that the
emancipation of women had been practically accomplished in Rome.
Perhaps there is no subject which at the present time possesses greater
interest for inquiring women than that concerning the status of their
sex under the older Roman law; for, by an understanding of woman’s
legal status, as fixed under this institution at a time when man had
gained the summit of his power over her, is furnished a key whereby may
be unlocked many of the mysteries surrounding the still extant social
and legal disabilities of women.
The thoroughly egoistic character of the principles underlying the
older Roman law has been noticed in a former portion of this work. We
have seen that in Rome the father, who was the sole representative of
the family, had drawn to himself not only all the authority over the
child which under the earlier gentile organization of society had been
acknowledged as belonging exclusively to the mother, but, ignoring
individual liberty, and all the principles of personal freedom which
had been established under the matriarchal system, had proclaimed
himself absolute sovereign over all within the agnatic bond. The divine
oracle of Apollo, which had enunciated the doctrine that the soul of
the child is derived from the father, had at the same time declared
that the mother has to do only with furnishing the body. Thus the
father, as Creator, became the household god; his authority, as we have
seen, being supreme even to the exercise of the power of life and death
over its members.
Under ancient law, the father, as head of the household, really
constituted the family, the remaining members being merely ciphers
which, from the peculiar position in which they were placed, were
without significance except as vassals under the strictest tutelage of
their master. Under this august system of father-worship, males as well
as females had become enslaved. The bondage of men, however, differed
somewhat from the “perpetual tutelage of women,” in the fact that they
themselves in time might become heads of families, and in that imperial
position to assume the same authority and dominion over others as had
been exercised over them. Women, however, could never become heads of
families, and therefore could never hope to be free. So long as they
remained single they were under the tutelage of their blood-relations,
or were subject to the authority of some individual whom the father,
before his death, might choose to appoint over them as guardian. Thus
arose the law known as the Perpetual Tutelage of Women. Upon this
subject Sir Henry Maine says:
Ancient law subordinates the woman to her blood-relations, while a
prime phenomenon of modern jurisprudence has been her subordination
to her husband. The history of the change is remarkable. It begins far
back in the annals of Rome. Anciently, there were three modes in which
marriage might be contracted according to Roman usage, one involving a
religious solemnity, the other two the observance of certain secular
formalities. By the religious marriage of _Confarreation_; by the
higher form of civil marriage, which was called _Coemption_; and by
the lower form, which was termed _Usus_, the husband acquired a number
of rights over the person and property of his wife, which were on
the whole in excess of such as are conferred on him in any system of
modern jurisprudence. But in what capacity did he acquire them? Not
as _Husband_, but as _Father_. By the _Confarreation_, _Coemption_,
and _Usus_, the woman passed in _manum viri_—that is, in law she
became the _Daughter_ of her husband. She was included in his _Patria
Potestas_. She incurred all the liabilities springing out of it while
it subsisted, and surviving it when it had expired. All her property
became absolutely his and she was retained in tutelage after his death
to the guardian whom he had appointed by will.[255]
[255] _Ancient Law_, p. 149.
On this subject of male supremacy in the family Mr. Maine remarks:
The foundation of Agnation is not the marriage of Father and Mother,
but the authority of the Father. All persons are Agnatically bound
together who are under the same Paternal Power, or who have been under
it, or who might have been under it if their lineal ancestor had
lived long enough to exercise his empire.[256]
[256] _Ancient Law_, p. 144.
Under this bond would be united all the children belonging to the
head of the household and all the descendants of the sons, but not of
the daughters; the daughters’ children under this manner of reckoning
descent belonged to the families of their respective fathers. Although
under this system a man might adopt a stranger into his family, and
invest him with all the rights and privileges appertaining thereunto,
no descendant of a daughter could claim any of the rights of agnation.
Under Hindu law, which is saturated with the primitive notions of
family dependency, in the genealogies, the names of women are omitted
altogether. We are assured by Mr. Maine that the exclusion of women
from governmental functions certainly had its origin in agnation. Thus
it is seen that paternity had come to involve the idea of a supreme
ruler or potentate, and that the overshadowing predominance of the
male over the female had paved the way to the future worship of one
all-powerful male deity.
We have seen that the principles involved in the Stoic philosophy
were justice, equality, and the subjection of the appetites to the
dictates of reason and conscience. So soon as Greece was subjugated
by Rome, the ablest of the Romans espoused the principles embodied in
this philosophy, and notably among those who became interested in its
tenets were the Roman lawyers, who began immediately to reconstruct the
civil law upon the principles underlying this system.
That it is only through a return to the archaic and natural principles
of justice and right living, the acknowledgment of which at once
establishes the proper relations of the sexes, that women may ever hope
to be free, is plain to all those who have given attention to this
subject. This fact was evidently observed by the Roman lawyers who,
through the persistency with which only those labour who are engaged
in establishing a principle, had so far succeeded in overcoming the
prejudice against sex as to have established a legal code wherein was
practically recognized the equality of women with men.
Doubtless the Romans were as tenacious of their ancient customs,
prejudices, and long-established privileges as have been the people
of any other country; hence we may perhaps form a faint idea of the
obstacles which presented themselves, and of the devices which must
have been resorted to by Roman jurists in an endeavour to remove the
existing legal restrictions upon the liberties of women.
Mr. Maine informs us that Gaius, a celebrated jurist who lived in the
age of the Antonine Cæsars, devoted an entire volume to descriptions of
the ingenious expedients devised by Roman lawyers to evade the letter
of the ancient law, and that it was through this source that the fact
finally became known that in the age of the Antonine Cæsars the legal
disabilities of women had been practically annulled.
From the facts at hand it is observed that the object of the Roman
lawyers was to frame an edictal jurisprudence which should supersede
the older law, or which in effect should annul its power. We are
informed that the prætor was not only the chief equity judge, but that
he was also the common-law magistrate. So soon, therefore, as the edict
had passed through the necessary formalities enabling it to become a
law, the prætor’s court began to apply it in place, or by the side of
the civil law, “which was directly or indirectly repealed without any
express enactment of legislation.” In reference to the legal status of
women in the age of the Antonine Cæsars, Henry Maine observes: “Led by
their theory of natural law, the jurisconsults had at this time assumed
the equality of the sexes as a principle of their code of equity.”[257]
[257] _Ancient Law_, p. 149.
Although the seed, sown in Greece during the Periclean age when
conveyed to Rome, produced a golden harvest, the fact will doubtless
be remembered that the Roman lawyers had but just completed their work
of establishing the legal equality of the sexes when the agencies
which for years had been at work to destroy the Empire culminated; and
finally, when Christianity, in the person of Constantine ascended the
throne, the results of four centuries of civilization were destroyed,
or for more than sixteen hundred years were practically annulled.
Regarding the changes which had been wrought in the legal status of
women in the age of the Antonine Cæsars, we are informed that whereas
under the older Roman law a woman at marriage came under the Patria
Potestas of her husband, under the later law, as influenced by the
principles involved in the Stoic philosophy, she remained as a member
of her own family, or was placed under the protection of a guardian
appointed by her parents, whose jurisdiction over her, although
superior to that of her husband, was not such as to interfere with
her personal liberty; thus, the same as under matriarchal usages, the
situation of the Roman woman, whether married or single, was one of
great influence. Of this freedom exercised by women in the time of the
Antonine Cæsars, Mr. Maine remarks:
But Christianity tended somewhat from the very first to narrow this
remarkable liberty.... The latest Roman Law, so far as it is touched
by the Constitutions of the Christian Emperors, bears some marks
of a reaction against the liberal doctrines of the great Antonine
jurisconsults. And the prevalent state of religious sentiment may
explain why it is that modern jurisprudence, forged in the furnace of
barbarian conquest, and formed by the fusion of Roman jurisprudence
with patriarchal usage, has absorbed, among its rudiments, much more
than usual of those rules concerning the position of women which
belong peculiarly to an imperfect civilization.[258]
[258] _Ancient Law_, p. 150.
Concerning the influence of ecclesiasticism on that portion of Roman
jurisprudence relating particularly to women, Mr. Lecky observes:
Wherever the canon law has been the basis of legislation, we find laws
of succession sacrificing the interests of daughters and of wives, and
a state of public opinion which has been formulated and regulated by
these laws.
By means of a formulated ecclesiastical jurisprudence the complete
inferiority of the sex was maintained,
and that generous public opinion, which in Rome had frequently
rebelled against the injustice done to girls in depriving them of
the greater portion of the inheritance of their fathers, totally
disappeared.
In comparing the Roman law with the canon or ecclesiastical code, the
same writer says that the pagan laws during the Empire were constantly
repealing the old disabilities of women; but that it was the aim of
the canon law to substitute enactments which should entail on the
female sex the greatest personal restrictions and the most stringent
subordination.[259]
[259] _European Morals_, vol. ii., p. 358.
Those who have paid attention to the history of the English Common
Law, which forms the basis of our present system of jurisprudence, and
who have noted the part played by ecclesiasticism in fixing the status
of women therein, will not be surprised at the attitude which the
so-called Christian Church has assumed toward women. Referring to the
Common Law, an able writer has said:
This imperishable specimen of human sagacity is, strange to say, so
grossly unjust toward women that a great writer upon that code has
well observed that in it women are regarded not as persons but as
things; so completely were they stripped of all their rights, and held
in subjection to their proud and imperious masters.[260]
[260] Buckle’s _Essays_.
It has been remarked that in no one particular does the canon law
depart so widely from the spirit of secular jurisprudence as in the
view it takes of the relations created by marriage. Although the leaven
of civilization preserved from Roman institutions was the codified
jurisprudence of Justinian, as the chapter of law relating to women
was read by the light of canon law, the altruistic principles which
had characterized the later Roman code soon became extinct. Upon this
subject Mr. Maine remarks:
This was in part inevitable since no society which preserves any
tincture of Christian institutions is likely to restore to married
women the personal liberty conferred on them by the middle Roman law.
And this is doubtless true for the reason that the entire Christian
superstructure rests on the dogma of female weakness and female
depravity. The doctrine of Original Sin, which depends entirely on the
story of the fruit-tree of Genesis being taken in a literal sense, had
by canonists been accepted. On her first appearance upon the scene of
action, woman is labouring under a curse pronounced upon her by an
all-powerful male God for the mischief she had wrought on innocent man;
it is only reasonable, therefore, that human law should unite with
the divine decree in establishing her complete and final degradation;
hence, the return to the ancient Hindu law and the older Roman code for
models of legislation concerning her.
On this subject Mr. Maine remarks:
I do not know how the operation and nature of the ancient Patria
Potestas can be brought so vividly before the mind as by reflecting on
the prerogatives attached to the husband by the pure English Common
Law, and by recalling the rigorous consistency with which the view of
a complete legal subjection on the part of the wife is carried by it,
where it is untouched by equity or statutes, through every department
of rights, duties, and remedies.[261]
[261] _Ancient Law_, p. 154.
NOTE.—As the position of women among the early German hordes was one
of great dignity and respect, it may scarcely be argued that the
sentiments embodied in the English Common Law relative to wives were
in any degree the result of innate Teutonic prejudice against the
female sex. #/
Notwithstanding the efforts which for several centuries were put forth
in Rome to secure to women that independence which under the earlier
Roman law had been denied them, in the code of Justinian, which was
compiled in the early part of the sixth century, no word respecting
the remarkable degree of liberty which under the later Roman law was
accorded to women appears; and but for the discovery of the manuscript
of Gaius, to which reference has already been made, we would never
have become acquainted with the changes which had been wrought in
this particular branch of Roman jurisprudence. In the Justinian code,
instead of the humane edicts of the later, or middle Roman law,
appeared the Canon or ecclesiastical law, by means of which women were
condemned to a state of servitude even more degrading than that which
had been imposed on them by the older law.
Had mediæval scholasticism succeeded in concealing from the world the
information contained in the manuscript of Gaius, still there would
have remained sufficient evidence left to prove that in the second
century of the present era woman’s freedom had been practically won.
That women themselves were claiming absolute legal equality with men
may not be doubted. Honoria, a Roman matron, first enunciated the
principle: Taxation without representation is tyranny.[262] Cato’s
celebrated oration in which he passionately exclaims: If you allow
your women to be your equals how long will it be before they become
your superiors?[263] shows that a certain type of men were becoming
alarmed over the growing independence of women.
[262] Roman History. Appian, London, 1913.
[263] The History of Rome. Titus Livius, p. 172.
The freeing of women from the bondage entailed on them by the older
Roman law, an achievement which had required more than three centuries
to accomplish, was a triumph for civilization unparalleled during the
historic period. That this triumph over tyranny was of short duration
is shown in the sequel to this movement.
That the coming of Jesus at a time when the principles of justice and
equality were becoming the recognized rule of life among the better
class of Romans is not surprising. No one may study Greek philosophy
without noting the similarity between it and the teachings of Christ.
Justice, self-restraint, and regard for the rights and feelings of
others, principles which when applied to Roman law had liberated women
from the tyranny of the past, were also the principles taught by Jesus.
It seems to have been the mission of the latter to convey these lofty
doctrines to the multitude. Do unto others as you would have others do
unto you was not however understood by the masses who knew no other
rule of life than that of selfishness and ungoverned lust. Hence in
process of time the new movement came to have no other effect than to
add to the already established evils another quite as contemptible,
namely—hypocrisy.
Among the earliest Christians theological disputes were unknown.
Original sin and the doctrine of a vicarious atonement whereby a man
is “saved” not from sin but from the penalty for sin were unheard of.
To spread the simple principles enunciated by Jesus and by so doing to
kindle into life the divine spark in man, seem to have constituted the
object and aim of the earliest Christians. The activities necessary for
the propagation of these principles were shared alike by both sexes.
Women exhorted, prophesied, and prayed in the churches. They baptized
their own sex. One of them wrote a gospel which, so long as woman’s
influence continued, was in use among the Christians.
Such were the conditions when Paul, a Jew who had espoused the new
religion, first appeared on the scene. An extant legend describes this
man as small in stature and of ignoble bearing. According to this
legend Paul was bald-headed and bow-legged. As to his intellectual
ability we have the following Corinthians x., 10: “For his letters
they were weighty and strong but his speech is of no account.” It is
elsewhere recorded of him that “his speech was contemptible.” From
what is known of this man Paul it is evident that he was domineering,
self-sufficient, and aggressive. He quarrelled with Peter and was
intolerant of the ideas of his associates. His forceful character, his
untiring energy, his zeal for the cause which he had espoused and above
all his capacity for organization soon gained for him the leadership of
the new movement.
Nowhere is it recorded that during the earlier years of Paul’s
Christian career he attempted to discourage, or curtail, the activities
of women. On the contrary he refers to them as co-workers, acknowledges
them as prophets, and praises their ministrations. In his writings, the
name of Priscilla occurs many times. Phœbe, Claudia, Julia and others
are regarded as worthy of mention by him. As his influence and power
increased, however, his egoism began to assert itself. It is evident
that Paul’s strong masculine nature could no longer tolerate a religion
which might with some degree of consistency be regarded as a feminine
movement. The old doctrine enunciated by Apollo during the reign of
Cecrops namely that man is a divine emanation while woman is only human
must be revived.
The following from Paul’s writings shows that his aim was to crush the
influence and power exercised by women, and the means employed was to
subject them to the dominion of their husbands.
The head of every man is Christ; and the head of every woman is the
man and the head of Christ is God.
For the man is not of the woman but the woman of the man. Neither was
the man created for the woman but the woman for the man.
Let your women keep silence in the churches, for it is not permitted
unto them to speak but they are commanded to be under obedience.
And if they would learn anything let them ask their husbands at home.
That women were no longer to be the equals and companions of their
husbands but that they were to become sexual slaves is indicated by the
command, “Wives subject yourselves unto your husbands.”
It must be remembered that these commands of Paul were not, as has
been frequently asserted, delivered to and about weak, ignorant women
devoid of influence, but were directed against those whose position of
equality in the new religion had not before been questioned, and whose
legal disabilities had at that time been well-nigh removed.
Before the close of the second century, the simple, ethical teachings
of Jesus were forgotten. Christianity had disappeared and Paulism had
taken its place. A century later, after the Empire had come under the
control of so-called Christian rule, woman’s influence, as we have
already seen, entirely disappeared. All that had been gained by means
of the middle Roman law had been annulled by the decrees of the Canon
law.
Pauline Christianity in the fourth century A.D. was an attempt to
re-establish that form of Paganism which had prevailed prior to the
rise of Greek philosophy. This older religion, which had its origin
in Sun worship, or in the worship of the two fecundating principles
throughout nature, had as early as the Periclean age ceased to claim
the attention of the educated classes among the Greeks. Æschylus
barely escaped being stoned to death for heresy, and as is well known,
Socrates the founder of the Stoic philosophy was forced to drink of
the fatal cup because of his unbelief in the prevailing superstitions.
Not to destroy Paganism itself but to exterminate the last vestige of
Greek philosophy was the task which the Pauline Christians had set
themselves to perform. Jesus now became the new Solar Deity and all
the forms observed under the older Paganism were now attached to his
worship. He was born at the winter solstice, or at the time when the
sun had reached its zenith and was about to return. He died and was
buried, but at the vernal equinox, Easter, the time at which all nature
is revived—he arose from the dead and became the Saviour of mankind.
The entire Christian calendar is copied from the ancient Pagan worship.
A medal was struck on which appeared the figure of a man on a cross,
on the obverse side of which was the representation of a blazing sun.
Christ was the new Sun of Righteousness, the giver and preserver of
life.
Every page in the history of the Pauline religion reveals its masculine
origin. The Deities worshipped are a Father and a Son. All the angels
and archangels are men. All extant Gospels and Epistles have been
written and expounded by men. It is true that in response to a popular
demand in the fifth century for a recognition of the female principle,
the Virgin Mary, an ancient Deity, reappeared. The lateness of her
coming, however, shows that she was an afterthought. Moreover, it must
be borne in mind that, true to the ancient doctrine which was revived
by Paul relative to the divinity of man and the material nature of
woman, the Mother of Jesus was human while the Father and the Son were
divine. She was matter. They were spirit.
Among the discussions of the early Pauline “Fathers” none was more
important than these. Ought women to be allowed to learn the alphabet?
And has woman a soul? It is recorded that a few of these pious leaders
entertained the opinion that because of the great power and goodness
of the Almighty “women may possibly be permitted to rise as men at the
resurrection.”
As we have seen, to destroy Greek philosophy was the slogan of the new
movement. The destruction of the Alexandrian library by a fanatical
mob led by Archbishop Theophilus is an example of the fury with which
all institutions not directly connected with the new religion were
attacked. As is well known, this library contained the accumulated
knowledge of a highly civilized people, extending over a period of
several thousands of years. Among the priceless treasures stored
in this library were the records of astronomical observations
scientifically registered during a period of not less than three
thousand years.
The lectures delivered by Hypatia in Alexandria during the latter part
of the fourth century were the last attempt made to stem the tide of
fanaticism which was destined to sweep over a large portion of the
habitable globe. The fate of Hypatia who was foully murdered by a mob
led by St. Cyril was a forecast of the fate which awaited any and all
who should henceforth dare to think or act independently of the new
religion.
When Greek philosophy was no longer taught, the principles of equality
and liberty which had been incorporated into the middle Roman law were
annulled or practically forgotten; and when the doctrine of woman’s
inferiority and total depravity became crystallized not only in
religion but in law and in all the customs of the time, women sank to a
degree of degradation never before witnessed in the history of mankind.