CHAPTER III. RIGHTS OF WOMEN AS MODIFIED BY THE CHRISTIAN EMPERORS
Christianity became the state religion under Constantine, who issued the Edict of Milan, giving toleration to the Christians, in the year 313. The emperors from Constantine through Justinian (527-565) modified the various laws pertaining to the rights of women in various ways. To the enactments of Justinian, who caused the whole body of the Roman law to be collected, I intend to give special attention. We must not, as yet, expect to find the strict views of the Church Fathers carried out in any severe degree. On the contrary the old Roman law was still so powerful that it was for the most part beyond the control of ecclesiasts. Justinian was an ardent admirer of it and could not escape from its prevailing spirit. Canon law had not yet developed. When the old Roman civilisation in Italy has succumbed completely to its barbarian conquerors; when the East has been definitely sundered from the West; when the Church has risen supreme, has won temporal power, and has developed canon law into a force equal to the civil law, - then finally we shall expect to see the legal rights of women changed in accordance with two new world forces - the Roman Catholic Church and the Germanic nations. I shall now discuss legislation having to do with my subject under the Christian emperors from Constantine (306-337) through the reign of Justinian (527-565).
[Divorce: rescript of Theodosius and Valentian.]
The power of husband and wife to divorce at will and for any cause, which we have seen obtained under the old Roman law, was confined to certain causes only by Theodosius and Valentinian (449 A.D.). These emperors asserted vigorously that[249] the dissolution of the marriage tie should be made more difficult, especially out of regard to the children. Pursuant to this idea the power of divorce was given for the following reasons alone: adultery, murder, treason, sacrilege, robbery; unchaste conduct of a husband with a woman not his wife and vice-versa; if a wife attended public games without her husband's permission; and extreme physical violence of either party. A woman who sent her husband a bill of divorce for any other reason forfeited her dowry and all ante-nuptial gifts and could not marry again for five years, under penalty of losing all civil rights. Her property accrued to her husband to be kept in trust for the children.
[Justinian on divorce]
Justinian made more minute regulations on the subject of divorce. To the valid causes for divorce as laid down by Theodosius and Valentinian he added impotence; if a separation was obtained on this ground, the husband might retain ante-nuptial gifts.[250] Abortion committed by the wife or bathing with other men than her husband or inveigling other men to be her paramours - these offences on the part of the wife gave her husband the right of divorce.[251] Captivity of either party for a prolonged period of time was always a valid reason. Justinian added also[252] that a man who dismissed his wife without any of the legal causes mentioned above existing or who was himself guilty of any of these offences must give to his wife one fourth of his property up to a sum not to exceed one hundred librae of gold, if he owned property worth four hundred librae or more; if he had less, one fourth of all he possessed was forfeit. The same penalties held for the wife who presumed to dismiss her husband without the offences legally recognised existing. The forfeited money was at the free disposal of the blameless party if there were no children; these being extant, the property must be preserved intact for their inheritance and merely the usufruct could be enjoyed by the trustees. A woman who secured a divorce through a fault of her husband had always to wait at least a year before marrying again propter seminis confusionem.[253]
[Justin revokes decrees of Justinian.]
Justin, the nephew and successor of Justinian, reaffirmed the right to divorce by mutual consent, thus abrogating the laws of his predecessors.[254] Justinian had ordained that if husband and wife separated by mutual consent, they were to be forced to spend the rest of their lives in a convent and forfeit to it one third of their goods.[255] Justin, then, made the pious efforts of his uncle naught. Nothing can more clearly illustrate than his decree how small a power the Church still possessed to mould the tenor of the law; for such a thing as divorce by mutual consent, without any necessary reason, was a serious misdemeanour in the eyes of the Church Fathers, who passed upon it their severest censures.
[Adultery.]
On the subject of adultery Justinian enacted that if the husband was the guilty party, the dowry and marriage donations must be given his wife; but the rest of his property accrued to his relatives, both in ascending and descending lines, to the third degree; these failing, his goods were confiscated to the royal purse.[256] A woman guilty of adultery was at once sent to a monastery. After a space of two years her husband could take her back again, if he so wished, without prejudice. If he did not so desire, or if he died, the woman was shorn and forced to spend the rest of her life in a nunnery; two thirds of her property were given to her relatives in descending line, the other third to the monastery; if there were no descendants, ascendants got one third and the monastery two thirds; relatives failing, the monastery took all; and in all cases goods inserted in the dowry contract were to be kept for the husband.[257]
[Second marriages.] [Strict laws of Gratian, Valentinian, and Theodosius.]
The legislation of the earlier Christian emperors on second marriages reflects the various feelings of the Church Fathers on the subject. Under the old law, people could marry as often as they wished without any penalties.[258] But we have seen that among some of the Churchmen second marriages were held in peculiar abhorrence, and third nuptials were regarded as a hideous sin; while the orthodox clergy, like St. Augustine and St. Jerome, permitted second and third marriages, but damned them with faint praise and urged Christians to be content with one venture. Public opinion, custom, and the influence of the old Roman law were too powerful to allow Christian monarchs to become fanatical on the subject[259]; but certain stricter regulations were introduced by the pious Gratian, Valentinian, and Theodosius, in the years 380, 381, and 382.[260] As under the old laws any widow who married again before the legal time of mourning - a year - had expired, became infamous and lost both cast and all claims to the goods of her deceased husband. She was furthermore not permitted to give a second husband more than one third of her property nor leave him more than one third by will; and she could receive no intestate succession beyond the third degree. A woman who proceeded to a second marriage after the legal period of mourning, must make over at once to the children of the first marriage all the property which her former husband had given or left to her. As to her own personal property, she was allowed to possess it and enjoy the income while she lived, but not to alienate it or leave it by will to any one except the children of the first marriage. As I have before remarked, Roman law constantly had the interest of the children at heart.[261] If there was no issue of the first marriage, then the woman had free control. A mother acquired full right - as the old Senatus consultum Tertullianum had decreed - to the property of a son or daughter who died childless[262]; but if she married a second time, and her son or daughter died without leaving children or grandchildren, she was expelled from all succession and distant relatives acquired the property.[263]
[Justinian moderates these laws to a great degree.]
Justinian changed these enactments to a pronounced degree. "We are not making laws that are too bitter against women who marry a second time," he remarks,[264] "and we do not want to lead them, in consequence of such action, to the harsh necessity, unworthy of our age, of abstaining from a chaste second marriage and descending to illegitimate connections." He ordained, therefore, that the law mentioned above be annulled and that mothers should have absolutely unrestricted rights of inheritance to a deceased child's property along with the latter's brothers and sisters; and second marriage was never to create any prejudice.[265] In the earlier part of his reign Justinian also forbade husband or wife to leave one another property under the stipulation that the surviving partner must not marry again[266]; but later, when his zeal for reform had become more pronounced and fanatical, he revoked this and gave the conditioned party the option either of enjoying the property by remaining unmarried or of forfeiting it by a second union.[267]
[Breaking of engagements.]
Constantine ordained,[268] in the year 336, that if an engagement was broken by the death of one of the contracting parties and if the osculum[269] had taken place, half of whatever donations had been given was to be handed over to the surviving party and half to the heirs of the deceased; but if the solemn osculum had not yet taken place, all gifts went to the heirs of the deceased. There was also a law that if either party broke the engagement to enter monastic life, the man who did so lost all that he had given by way of earnest money for the marriage contract (arrarum nomine); if it was the woman who took the initiative, she was compelled to return twice the amount of any sums she had received. This was changed by Justinian, who enacted that those who broke an engagement to enter monastic life should merely return or receive whatever donations had been made.[270] Constantine and his successors abrogated the old time Julian laws, which had inflicted certain penalties - such as limited rights of inheritance - on men and women who did not marry.[271]
[Changes in the law of gifts.]
I have already pointed out that gifts between husband and wife were illegal and I have explained the reasons. Justinian allowed the husband to make donations to his wife, in such wise, however, that all chance of intent to defraud might be absent.[272] He ordained also that if husband or wife left the married state to embrace a celibate life, each party was to keep his or her own property as per marriage contract or as each would legitimately in the case of the other's death.[273] If any one, after vowing the monastic life, returned to the world, his or her goods were forfeit to the monastery which he or she had left.[274]
[Various enactments on marriage.]
The consent of the father or, if he was dead, of near relatives was emphatically declared necessary by the Christian emperors for a marriage and the woman had practically no will of her own although, if several suitors were proposed to her, she might be requested to name which one she preferred.[275] Marriage with a Jew was treated as adultery.[276] Women who belonged to heretical sects were to have no privileges.[277] Justinus and Justinian abrogated the old law which forbade senators to marry freedwomen or any woman who had herself or whose parents had followed the stage. Actresses were now permitted, on giving up their profession, to claim all the rights of other free women; and a senator could marry such or even a freedwoman without prejudice.[278]
[Changes in the laws of inheritance.]
Under the old law, as we have seen, a son and a daughter had equal rights to intestate succession; but beyond the relationship of daughter to father or sister to brother women had no rights to intestate succession unless there were no agnates, that is, male relatives on the father's side. Thus, an aunt would not be called to the estate of a nephew who died childless, but the uncle was regularly admitted. So, too, a nephew was admitted to the intestate succession of an uncle, who died without issue, but the niece was shut out. All this was changed by Justinian, who gave women the same rights of inheritance as men under such conditions.[279] If the children were unorthodox, they were to have absolutely no share of either parent's goods.[280]
[Women as guardians.]
[In suits.]
The Christian emperors permitted widows to be guardians over their children if they promised on oath not to marry again and gave security against fraud.[281] Justinian forbade women to act by themselves in any legal matters.[282]
[Bills of attainder.]
Arcadius and Honorius (397 A.D.) enacted some particularly savage bills of attainder, which were in painful contrast to the clemency of their pagan predecessors. Those guilty of high treason were decapitated and their goods escheated to the crown. "To the sons of such a man [i.e., one condemned for high treason]," write these amiable Christians,[283] "we allow their lives out of special royal mercy - for they ought really to be put to death along with their fathers - but they are to receive no inheritances. Let them be paupers forever; let the infamy of their father ever follow them; they may never aspire to office; in their lasting poverty let death be a relief and life a punishment. Finally, any one who tries to intercede for these with us is also to be infamous."[284] However, to the daughters of the condemned these emperors graciously granted one fourth of their mother's but not any of their father's goods. In the case of crimes other than high treason the children or grandchildren were allowed one half of the estate.[285] Constantine decreed that a wife's property was not to be affected by the condemnation of her husband.[286]
[Rape.]
Ravishers of women, even of slaves and freedwomen, were punished by Justinian with death; but in the case of freeborn women only did the property of the guilty man and his abettors become forfeit to the outraged victim. A woman no longer had the privilege of demanding her assailant in marriage.[287]
SOURCES
Roman Law as cited in Chapter I, especially the Novellae of Justinian.
NOTES:
[249] Codex, v, 17, 8 contains this rescript in full.
[250] Codex, v, 17, 10.
[251] Codex, v, 17, 11.
[252] Id.
[253] Novellae, 22, 18.
[254] Novellae, 140, 1: Antiquitus quidem licebat sine periculo tales (i.e., those of incompatible temperament) ab invicem separari secundum communem voluntatem et consensum hoc agentes, sicut et plurimae tunc leges extarent hoc dicentes et bona gratia sic procedentem solutionem nuptiarum patria vocitantes voce. Postea vero divae memoriae nostro patri.... legem sancivit prohibens cum consensu coniugia solvi.... Haec igitur aliena nostris iudicantes temporibus in praesenti sacram constituimus legem, per quam sancimus licere ut antiquitus consensu coniugum solutiones nuptiarum fieri.
[255] Novellae, 134, 11.
[256] Novellae, 134, 10.
[257] Novellae, 134, 10.
[258] Novellae, 22 (praefatio): Antiquitas equidem non satis aliquid de prioribus aut secundis perserutabatur nuptiis, sed licebat et patribus et matribus et ad plures venire nuptias et lucro nullo privari, et causa erat in simplicitate confusa.
[259] The language of some of them is pretty strong, however - matre iam secundis nuptiis funestata - Codex, v, 9, 3 (Gratian, Valentinian, Theodosius).
[260] For these see Codex, v, 9, 1 and 2 and 3.
[261] Cf. Codex, v, 9, 4. Nos enim hac lege id praecipue custodiendum esse decrevimus, ut ex quocumque coniugio suscepti filii patrum suorum sponsalicias retineant facilitates.
[262] Codex, vi, 56, 5.
[263] Novellae, ii, 3: ex absurditate legis, licet praemoriantur filii omnes, non relinquentes filios aut nepotes, nihilominus supplicium manet, et non succedit eis mater, sed expellitur ab eorum inhumane successione ... sed succedunt quidem illis aliqui ex longa cognatione.
[264] Novellae, ii, 3.
[265] Novellae ii, 3.
[266] Codex, vi, 40, 2 and 3.
[267] Novellae, 22, 44: unde sancimus, si quis prohibuerit ad aliud venire matrimonium, etc.
[268] Codex, v, 3, 16.
[269] The osculum was a sort of "donation on account of marriage" made on the day of the formal engagement.
[270] Codex, i, 3, 54 (56).
[271] Codex, viii, 57 (58), I and 2. Cf. Codex, viii, 58 (59), 1 and 2.
[272] Codex, v, 3, 10.
[273] Codex, i, 3, 54 (56). Gregory of Tours informs us that according to the Council of Nicaea - 325 A.D. - a wife who left her husband, to whom she was happily married, to enter a nunnery incurred excommunication. He means probably: if she went without her husband's consent. Greg. 9, 33: Tunc ego accedens ad monasterium canonum Nicaenorum decreta relegi, in quibus continetur: quia si quae reliquerit virum et thorum, in quo bene vexit, spreverit, dicens quia non sit ei portio in illa caelestis regni gloria qui fuerit coniugio copulatus, anathema sit. (Note of editor: Videtur esse canon 14 concilii Grangensis, quod concilium veteres Nicaeno subiungere solebant; idque indicat titulus in veteribus scriptis.)
[274] Codex, i, 3, 54 (56).
[275] Codex, v, 4, 20, and 5, 18.
[276] Codex, i, 9, 6.
[277] Novellae, cix, 1.
[278] Codex, v, 4, 23 and 28.
[279] Codex, vi, 58, 14.
[280] Codex, i, 5, 19.
[281] Codex, v, 35, 2 and 3.
[282] Codex, ii, 55, 6.
[283] Codex, ix, 8, 5.
[284] This law was evidently lasting, for it is quoted with approval by Pope Innocent III, in the year 1199 - see Friedberg, Corpus Iuris Canonici, vol. ii, p. 782.
[285] Codex, ix, 49, 10.
[286] Codex, v, 16, 24.
[287] For all these enactments see Codex, i, 3, 53 (54), and ix, 13.