Page:Harvard Law Review Volume 8.djvu/55

39 WOMAN IN EARLY ROMAN LAW. 39 WOMAN IN EARLY ROMAN LAW. THE foundation of archaic society, or, if the expression be per- mitted, its legal unit, at least among all branches of the Aryan race whose histories and antiquities are known to us, was the family, and not, as in modern times, the individual. Hence it would be but natural that woman's position in law would be largely, if not wholly, determined by her position in the legal unit. And as the conception of the ancient family or, perhaps, to speak more correctly, the particular line which the conception followed, was due in a very marked degree, to the peculiar religious beliefs of early times, it is imperative that we premise our present investi- gation with an examination of the religion of men of even greater antiquity than the Roman of history. The Aryans,^ as far back in the night of ages as our gaze can penetrate, never believed that at the close of man's short earthly existence all was ended for him. They looked upon death, not as a dissolution of our being, but simply as a change of life.^ In the belief of these primitive men, the human soul after death resided with its body in the tomb. From its living descendants it de- manded sacrifices and food offerings. Each family, therefore, had its own tomb always situated near the house, so that the living could easily hold communion with the dead. The happiness of the dead depended on this proximity to the living. Though no longer of this life, they still needed the food and drink prepared for them by their pious descendants. In return, they protected the living, and gave them pure thoughts and a happy life. The failure to make the proper offerings to his ancestors was the most impious act that a man could be guilty of. The deserted dead fell from their blissful state. They became malignant demons, ^ The period to which this essay is confined cannot be shown by exact dates. Suffice it to say, however, that only that portion of woman's legal history is here exam- ined, which is antecedent to the time when, in the last years of the republic, she began her memorable advance from legal nonentity to her enviable position as the decided favorite of Roman jurisprudence. 2 The theory here advanced of the ancient religion of Italy is that of Fastel de Coulanges, as found in " La Cite antique," English translation, by Willard Small, Bos- ton and New York, 1889, pp. 15-48. • Coulanges, The Ancient City, Mr. Small's translation, p. 15.