CHAPTER V

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.

The Sexes in Science and History An inquiry into the dogma of woman's inferiority to man · 第 5 / 7 章