A Short History of Women's Rights Part 9

[Sidenote: 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]

[Sidenote: 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]

[Sidenote: 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]

[Sidenote: 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]

[Sidenote: Women as guardians.]

[Sidenote: 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]

[Sidenote: 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]

[Sidenote: 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 a.s.sailant 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 c.u.m consensu coniugia solvi.... Haec igitur aliena nostris iudicantes temporibus in praesenti sacram const.i.tuimus 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 quoc.u.mque 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 t.i.tulus 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.