Page:Harvard Law Review Volume 8.djvu/59

43 WOMAN IN EARLY ROMAN LAW. 43 of the suppression of the worship of Bacchus at Rome.^ In this case the men were punished by the state, but the women had to be given over to the private jurisdiction of the family. A passage from Gains also well illustrates the complete ignoring of women by the public law of Rome. " It should be noted," says he, " that nothing can be granted in the way of justice to those under power, that, since these persons can own no property, they are incompe- tent to claim anything in point of law."^ So we find that women w'ere ineligible as witnesses in court. Another disability arising from their non-recognition by the public law of Rome, was their inability to make wills. In the early days of Rome a will could be made only in one of two ways : either by an oral declaration, when, on the eve of battle, the legion was drawn up in line {in procinctii), in readiness to march to the field ; or by publication in an assembly called the comitia calata, whose assent was necessary to the validity of the will. It is quite obvious that the first method was impossible for a woman ; while it will be equally plain that she was unable to publish a will in the comitia, when we learn that women had no place in that assembly, none but heads of households, Roman citizens, being there admitted. When she reached the age of seven years, the Roman maiden could be betrothed by her father to the man of his choice ; and the law by a pleasant fiction supposed that the intended groom was her choice also. For it was a lasting principle of Roman law that not only connubium (right of intermarriage), but also con- sent, were necessary to a valid tying of the nuptial knot. The term "consent" here included not only the woman's consent but his also in whose power she was. By holding, however, that a daughter was entirely subject to her father's will, the necessity of her consent was made merely nominal. And although, at this period, such an eminently just principle of law seems to have been a mere mockery, yet in the latter years of the republic, and during the empire, it was of great importance to women in their struggle for equal rights. Whether in early Rome suit could be brought for the non- performance of a marriage contract, is not now known, although a passage from Sulpicius Rufus,^ an eminent jurist who flourished 1 Book XXXIX., ch. 18. 2 Gaius II., 96. 8 Preserved by Gellius ; see Smith, Dictionary of Greek and Roman Antiquities, article, Matrimonium, by Geo. Long.
 * ". e. to slaves, children, and wives. For it is reasonable to conclude