CHAPTER III

RIGHTS OF WOMEN AS MODIFIED BY THE CHRISTIAN

C

EMPERORS

HRISTIANITY became the state religion under Constantine, who issued the Edict of Milan, giving toleration to the Christians, in the year 313. The emperors from Constantine through Justinian (527-565) modified the various laws pertaining to the rights of women in various ways. To the enactments of Justinian, who caused the whole body of the Roman law to be collected, I intend to give special attention. We must not, as yet, expect to find the strict views of the Church Fathers carried out in any severe degree. On the contrary the old Roman law was still so powerful that it was for the most part beyond the control of ecclesiasts. Justinian was an ardent admirer of it and could not escape from its prevailing spirit. Canon law had not yet developed. When the old Roman civilisation in Italy has succumbed completely to its barbarian conquerors; when the East has been definitely sundered from the West; when the Church has risen supreme, has won temporal power, and has developed canon law into a force equal to the civil law,—

then finally we shall expect to see the legal rights of women changed in accordance with two new world forces-the Roman Catholic Church and the Germanic nations. I shall now discuss legislation having to do with my subject under the Christian emperors from Constantine (306–337) through the reign of Justinian (527-565).

Divorce: rescript of Theodosius

and

Valentinian.

I

The power of husband and wife to divorce at will and for any cause, which we have seen obtained under the old Roman law, was confined to certain causes only by Theodosius and Valentinian (449 A.D.). These emperors asserted vigorously that the dissolution of the marriage tie should be made more difficult, especially out of regard to the children. Pursuant to this idea the power of divorce was given for the following reasons alone: adultery, murder, treason, sacrilege, robbery; unchaste conduct of a husband with a woman not his wife and vice-versa; if a wife attended public games without her husband's permission; and extreme physical violence of either party. A woman who sent her husband a bill of divorce for any other reason forfeited her dowry and all ante-nuptial gifts and could not marry again for five years, under penalty of losing all civil rights. Her property accrued to her husband to be kept in trust for the children.

Justinian made more minute regulations on the subject of divorce. To the valid causes for 1 Codex, v, 17, 8 contains this rescript in full.

divorce as laid down by Theodosius and Valentinian he added impotence; if a separation was obtained on this ground, the husband might Justinian on retain ante-nuptial gifts.' Abortion

-

divorce.

committed by the wife or bathing with other men than her husband or inveigling other men to be her paramours—these offences on the part of the wife gave her husband the right of divorce.2 Captivity of either party for a prolonged period of time was always a valid reason. Justinian added also3 that a man who dismissed his wife without any of the legal causes mentioned above existing or who was himself guilty of any of these offences must give to his wife one fourth of his property up to a sum not to exceed one hundred librae of gold, if he owned property worth four hundred librae or more; if he had less, one fourth of all he possessed was forfeit. The same penalties held for the wife who presumed to dismiss her husband without the offences legally recognised existing. The forfeited money was at the free disposal of the blameless party if there were no children; these being extant, the property must be preserved intact for their inheritance and merely the usufruct could be enjoyed by the trustees. A woman who secured a divorce through a fault of her husband had always to wait at least a year before marrying again propter seminis confusionem.1

1 Codex, v, 17, 10. 2 Codex, v, 17, II. 3 Id.

4 Novellae, 22, 18.

Justin re

2

Justin, the nephew and successor of Justinian, reaffirmed the right to divorce by mutual consent, thus abrogating the laws of his prevokes decrees decessors.1 Justinian had ordained of Justinian. that if husband and wife separated by mutual consent, they were to be forced to spend the rest of their lives in a convent and forfeit to it one third of their goods. Justin, then, made the pious efforts of his uncle naught. Nothing can more clearly illustrate than his decree how small a power the Church still possessed to mould the tenor of the law; for such a thing as divorce by mutual consent, without any necessary reason, was a serious misdemeanour in the eyes of the Church Fathers, who passed upon it their severest

censures.

Adultery.

On the subject of adultery Justinian enacted that if the husband was the guilty party, the dowry and marriage donations must be given his wife; but the rest of his property accrued to his relatives, both in ascending and descending lines, to the third degree; these failing, his

1 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 sancivit prohibens cum consensu coniugia solvi. igitur aliena nostris iudicantes temporibus in praesenti sacram constituimus legem, per quam sancimus licere ut antiquitus consensu coniugum solutiones nuptiarum fieri.

legem Haec

A

goods were confiscated to the royal purse.' woman guilty of adultery was at once sent to a monastery. After a space of two years her husband could take her back again, if he so wished, without prejudice. If he did not so desire, or if he died, the woman was shorn and forced to spend the rest of her life in a nunnery; two thirds of her property were given to her relatives in descending line, the other third to the monastery; if there were no descendants, ascendants got one third and the monastery two thirds; relatives failing, the monastery took all; and in all cases goods inserted in the dowry contract were to be kept for the husband.2

The legislation of the earlier Christian emperors on second marriages reflects the various second marfeelings of the Church Fathers on the riages. subject. Under the old law, people could marry as often as they wished without any penalties.3 But we have seen that among some of the Churchmen second marriages were held in peculiar abhorrence, and third nuptials were regarded as a hideous sin; while the orthodox clergy, like St. Augustine and St. Jerome, permitted second and third marriages, but damned them with faint praise and urged Christians to be content with

I Novellae, 134, 10.

2 Novellae, 134, 10.

3 Novellae, 22 (praefatio): Antiquitas equidem non satis aliquid de prioribus aut secundis perscrutabatur nuptiis, sed licebat et patribus et matribus et ad plures venire nuptias et lucro nullo privari, et causa erat in simplicitate confusa.