Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/678

Rh 638 WOMEN which illustrate the subordination of women, there was much legislation dealing with, inter alia, offences against chastity, and marriage of a man with a captive heathen woman or with a purchased slave. So far from second marriages being restrained, as they were by Christian legislation, it was the duty of a childless widow to marry her deceased husband s brother. In India subjection was a cardinal principle. &quot; Day and night must women be held by their protectors in a state of dependence,&quot; says Manu. 1 The rule of inheritance was agnatic, that is, descent traced through males to the exclusion of females. 2 The gradual growth of stridkana, or property of a woman given by the husband before or after marriage, or by the wife s family, was probably what led to the suttee, for both the family of the widow and the Brahmans had an interest in getting the life estate of a woman out of the way. 3 Women in Hindu law had only limited rights of inheritance, and were disqualified as witnesses. In Roman law a woman was even in historic times completely dependent. If married she and her property passed into the power of her husband; if unmarried she was (unless a vestal virgin) under the perpetual tutelage of her father during his life, and after his death of her agnates, that is, those of her kinsmen by blood or adoption who would have been under the power of the common ancestor had he lived. Failing agnates, the tutelage probably passed to the gens. The wife was the purchased property of her husband, and, like a slave, acquired only for his benefit. A woman could not exercise any civil or public office. In the words of Ulpian, &quot;feminaa ab omnibus officiis civilibus vel publicis remotae sunt.&quot; 4 A woman could not continue a family, for she was &quot; caput et finis familiae suse,&quot; 5 could not be a witness, surety, tutor, or curator; she could not adopt or be adopted, or make a will or contract. She could not succeed ab intestato as an agnate, if further removed than a sister. A daughter might be disinherited by a general clause, a son only by name. On the other hand, a woman was privileged in some matters, but rather from a feeling of pity for her bodily weakness and presumed mental incapacity 6 than for any more worthy reason. Thus she could plead ignorance of law as a ground for dissolving an obligation, which a man could not as a rule do ; she could accuse only in cases of treason and witchcraft ; and she was in certain cases exempt from torture. In succession ab intestato to im movable property Roman law did not, as does English, recognize any privilege of males over females. Legal dis abilities were gradually mitigated by the influence of fictions, the praetorian equity, and legislation. An example of the first was the mode by which a woman freed herself from the authority of her tutor by fictitious cession into the authority of a tutor nominated by herself, or by sale of herself into the power of a nominal husband on the understanding that he was at once to emancipate her to another person, who then manumitted her. The action of equity is illustrated by the recognition by the praetor of cognatic or natural as distinguished from agnatic or artificial relationship, and of a widow s claim to succeed on the death of her husband intestate and without relations. Legislation, beginning as early as the Twelve Tables, which forbade excessive mourning for the dead by female mourners, did not progress uniformly towards 1 Ch. ix. 2 (Sir W. Jones s translation). 2 Whether this was the oldest rule of inheritance has been much debated. See FAMILY. That birth of a child gave the mother certain legal rights in a primitive stage of society is the view of many See especially Das Mutterrecht of J. J. Bachoffen (Stutt- 3 Maine, Early History of Institutions, lect. xi. 4 Dig., i. 16, 195. s lbidt 6 Imbecillitas is the term used more than once in the texts of Roman law. enfranchisement of women. For instance, the Lex Voconia (about 169 B.C.), called by St Augustine the most unjust of all laws, provided that a woman could not be instituted heir to a man who was registered as owner of a fortune of 100,000 asses. 7 A constitution of Valentinian I. forbade bequests by women to ecclesiastics. But the tendency 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 super seded the period of manus (see SETTLEMENT). 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, &quot; one of great personal and proprietary inde pendence.&quot; 8 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 improve ments, 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, 9 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 Constantino, 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. (G) The same constitutions made the benediction of a priest a necessary part of the ceremony of marriage. 10 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 7 The way in which this law was evaded was by non-enrolment of the testator in the census (see Montesquieu, Esprit ties Lois, bk. xxvii. ). Another way was by leaving her the inheritance by fideicommissuiu (see TRUST). 8 Ancient Law, ch. v. Hence the necessity of such laws as the Lex Oppia (see SUMPTUARY LAWS). 9 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 (see THEATRE). 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). 10 See Troplong, De I Influence du Christianisme sur le Droit Civil.