of legislation was undoubtedly in the direction indicated. Adoption of women was allowed by Diocletian and Maximian in 291. The tutelage of women of full age was removed by Claudius, and, though afterwards in part revived, has disappeared by the time of Justinian. This implied full testamentary and contractual liberty. In regard to the separate property of the married woman, the period of dos had by the time of Justinian long superseded the period of manus. The result was that, in spite of a few remaining disabilities, such as the general incapacity to be surety or witness to a will or contract, of a wife to make a gift to her husband, of a widow to marry within a year of her husband's death, the position of women had become, in the words of Sir H. Maine, “one of great personal and proprietary independence.”[1] For this improvement in their position they were largely indebted to the legislation of the Christian emperors, especially of Justinian, who prided himself on being a protector of women.
The following are a few of the matters in which Christianity appears to have made alterations, generally but perhaps not always improvements, in the law. As a rule the influence of the church was exercised in favour of the abolition of the disabilities imposed by the older law upon celibacy and childlessness, of increased facilities for entering a professed religious life,[2] and of due provision for the wife. The church also supported the political power of those who were her best friends. The government of Pulcheria or Irene would hardly have been endured in the days of the pagan empire. Other cases in which Christianity probably exercised influence may be briefly stated, (1) All differences in the law of succession ab intestato of males and females were abolished by Justinian. (2) The appointment of mothers and grandmothers as tutors was sanctioned by the same emperor. (3) He extended to all cases the principle established by the Senatus Consultum Tertullianum (158), enabling the mother of three (if a freed woman four) children to succeed to the property of her children who died intestate, and gave increased rights of succession to a widow. (4) The restrictions on the marriage of senators and other men of high rank with women of low rank were extended by Constantine, but almost entirely removed by Justinian. (5) Second marriages were discouraged (especially by making it legal to impose a condition that a widow's right to property should cease on re-marriage), and the Leonine Constitutions at the end of the 9th century made third marriages punishable. (6) The same constitutions made the benediction of a priest a necessary part of the ceremony of marriage.[3] The criminal law in its relation to women presents some points of interest. Adultery was punished with death by Constantine, but the penalty was reduced by Justinian to relegation to a convent. A woman condemned for adultery could not re-marry. A marriage between a Christian and a Jew rendered the parties guilty of adultery. Severe laws were enacted against offences of unchastity, especially procurement and incest. It was a capital crime to carry off or offer violence to a nun. A wife could not commit furtum of her husband's goods, but he had a special action rerum amotarum against her. By several sumptuary constitutions, contained in the Code, bk. xi., women as well as men were subject to penalties for wearing dress or ornaments (except rings) imitating those reserved for the emperor and his family. Actresses and women of bad fame were not to wear the dress of virgins dedicated to Heaven. If a consul had a wife or mother living with him, he was allowed to incur greater expense than if he lived alone. The interests of working women were protected by enactments for the regulation of the gynoecia, or workshops for spinning, dyeing, &c.
The canon law, looking with disfavour on the female independence prevailing in the later Roman law, tended rather in the opposite direction. The Decretum specially inculcated subjection of the wife to the husband, and obedience to his will in all things.[4] The chief differences between canon and Roman law were in the law of marriage, especially in the introduction of publicity and of the formalities of the ring and the kiss. The benediction of a priest was made a necessary part of the ceremony, as indeed it had been made by the civil power, as has been already stated, in the post-Justinian period of Roman law. But in practice this rule appears to have fallen into disuse until it was again revived by the council of Trent. It was, however, the rule of the English common law after the Reformation. The ceremony was not to be performed during Lent. The woman was to be veiled during the ceremony. A promise of marriage was so sacred that it made a subsequent marriage with another person void. Spiritual cognation was a bar to marriage. The sentence of the church was made necessary for divorce. As to women in general the law does not say very much. Women, even relatives, were not to live with priests unless in case of necessity. They were not to approach the altar or fill any public office of the church; nor might they lend money on usury. Baptism might be valid although administered by a woman. Women who had professed religion could not be forced to give evidence as witnesses. In some cases the evidence of women was not receivable.[5]
The early law of the northern parts of Europe is interesting from the different ways in which it treated women. In the words of Sir H. Maine[6]—“The position of women in these barbarous systems of inheritance varies very greatly. Sometimes they inherit, either as individuals or as classes, only when males of the same generation have failed. Sometimes they do not inherit, but transmit a right of inheritance to their male issue. Sometimes they succeed to one kind of property, for the most part movable property, which they probably look a great share in producing by their household labour; for example, in the real Salic law (not in the imaginary code) there is a set of rules of succession which, in my opinion, clearly admit women and their descendants to a share in the inheritance of movable property, but confine land exclusively to males and the descendants of males. . . . The idea is that the proper mode of providing for a woman is by giving her a marriage portion; but, when she is once married into a separate community consisting of strangers in blood, neither she nor her children are deemed to have any further claim on the parent group.” Among the Scandinavian races women were under perpetual tutelage, whether married or unmarried. The first to obtain freedom were the widows.[7] As late as the code of Christian V., at the end of the 17th century, it was enacted that if a woman married without the consent of her tutor he might have, if he wished, administration and usufruct of her goods during her life.[8] The provision made by the Scandinavian laws under the name of morning-gift was perhaps the parent of the modern settled property.[9] The Brehon law of Ireland excepted women from the ordinary course of the law. They could distrain or contract only in certain named cases, and distress upon their property was regulated by special rules. In the pre-Conquest codes in England severe laws were denounced against unchastity, and by a law of Canute a woman was to lose nose and ears for adultery. The laws of Athelstan contained the peculiarly brutal provision for the punishment of a female slave convicted of theft by her being burned alive by eighty other female slaves. Other laws were directed against the practice of witchcraft (q.v.) by women. Monogamy was enforced both by the civil and ecclesiastical law; and second and third marriages involved penance. A glimpse of cruelty in the household is afforded by the provision, occurring no less than three times in the ecclesiastical legislation, that if a woman scourged her female slave to death she must do penance. Traces of wife-purchase are seen in the law of Ethelbert, enacting that if a man carry off a freeman's wife he must at his own expense procure the husband another wife. The codes contain few provisions as to the property of married women, but those few appear to prove that she was in a better position than at a later
- ↑ Ancient Law, ch. v . Hence the necessity of such laws as the Lex Oppia (see Sumptuary Laws).
- ↑ A remarkable example of this tendency was the provision that an actress might leave the stage and break her contract of service with impunity in order to become a nun. Even under the pagan emperors a constitution of Diocletian and Maximian in 285 had enacted that no one was to be compelled to marry (Cod. v. 4, 14).
- ↑ See R. T. Troplong, De l'influence du christianisme sur le droit civil.
- ↑ Pt. ii. caus. xxxiii. qu. v. ch. 16.
- ↑ On this branch of the subject see Manssen's Het Christendom en de Vrouw (Leiden, 1877).
- ↑ Early Law and Custom, ch. v.
- ↑ See Stiernhook, De jure Sveonum (Stockholm, 1672), bk. ii . ch. i.; Messenius, Leges Svecorum (Stockholm, 1714).
- ↑ Bk. iii. ch. xvi. §§ 1,2.
- ↑ The development of the bride-price no doubt was in the same direction. Its original meaning was, however, different. It was the sum paid by the husband to the wife's family for the purchase of part of the family property, while the morning-gift was paid as pretium virginitatis to the bride herself. In its English form morning-gift occurs in the laws of Canute; in its Latinized form of morgangiva it occurs in the Leges Henrici Primi.
