[227] Abelard, Ep., 9, in vol. 178, p. 325, of Migne: Beatus Hieronymus ... tanto magis necessarium amorem huius studii (i.e. the Scriptures) censuit, quanto eas naturaliter infirmiriores et carne debiliores esse conspexit. Cf. St. Paul of Nolan, _Letters_, 23, -- 135--Migne 61, p.

273: Hi enim (i.e. evil spirits) petulantius infirmiora vasa pertentant, sicut non Adam, sed Evam coluber aggressus est.

[228] Adversus Iovianum, i, 48--Migne, vol. 23, p. 278.

[229] Adversus Iovianum, i, 28--Migne, vol. 23, pp. 249-250: Qui enim ducit uxorem, in ambiguo est, utrum odiosam an amabilem ducat. Si odiosam duxerit, ferri non potest. Si amabilem, amor illius inferno et arenti terrae et incendio comparatur. He quotes the Old Testament, especially _Pr_. 30, 16, to support his views.

[230] S. Maximi Episcopi Taurinensis--Homilia 53, I--Migne, vol. 57, p.

350.

[231] Augustinus: _Quaest. ex vet. Test_., 21: an mulier imago Dei sit ... unde et Apostolus, Vir quidem, inquit, non debet velare caput, c.u.m sit imago et gloria Dei; mulier autem, inquit, velet caput. Quare? Quia non est imago Dei. Unde denuo dicit Apostolus: Mulieri autem docere non permitt.i.tur, neque dominari in virum. Migne, vol. 35, p. 2228.

[232] Migne, vol. 171, pp. 1698-1699:

Femina dulce malum, pariter favus atque venenum, Melle linens gladium cor confodit et sapientum. Quis suasit primo vet.i.tum gustare parenti?

Femina. Quis patrem natas vitiare coegit? Femina. Quis fortem spoliatum crine peremit? Femina. Quis iusti sacrum caput ense recidit?

Femina.--etc., ad lib.

However, in another poem he acknowledges that there is nothing more beautiful than a good woman:

In cunctis quae dante Deo concessa videntur Usibus humanis, nil pulchrius esse putamus, Nil melius muliere bona, etc.

[233] Migne, vol. 80, p. 307. The sentiment is more fully developed in another poem--Migne, vol. 80, p. 307:

Femina causa fuit humanae perditionis; Qua reparatur h.o.m.o, femina causa fuit. Femina causa fuit cur h.o.m.o ruit a paradiso; Qua redit ad vitam, femina causa fuit. Femina prima parens exosa, maligna, superba; Femina virgo parens casta, benigna, pia.

[234] _Quaest. ex vet. Test_., 45; Migne, vol. 35, p. 2244.

[235] E.g., Tertullian, _de virg. vel_., 9. St. Paul of Nolan, letter 23, -- 135--Migne, 61, p. 273. Id., letter 26, vol. 61, p. 732 of Migne.

Cf. Augustine, letter 262, -- 5--Migne, 33, p. 1079.

[236] Basilius, _ad Amphil_., c.42: Matrimonia sine iis, qui potestatem habent, fornicationes sunt.

Ambrose says: Honorantur parentes Rebeccae muneribus, consulitur puella non de sponsalibus, illa enim expectat iudicium parentum; non est enim virginalis pudoris eligere maritum.

[237] Virginitas praeferenda coniugio--August., vol. 44, p. 142 of Migne. The Council of Trent, eleven centuries later, in its twenty-fourth session, re-echoed this sentiment and anathematised any one who should deny it.

[238] Migne, vol. 16, p. 342.

[239] Id., II, p. 1074.

[240] Tertullian _ad uxorem_, i, 3.

[241] Id. _ad uxorem_, i, 5. See also Gregory of Nya.s.sa, _de Virg_., iii, on the evils of matrimony.

[242] v. Tertullian, _ad uxorem_. For Paul of Nolan, see Migne, vol. 61, p. 22.

[243] Laudo nuptias, laudo coniugium, sed quia mihi virgines generant.

[244] _Ad uxorem_, i, 7 and 9: non aliud dicendum erit secundum matrimonium quam species stupri.

[245] Jerome, _Epist_., 123. See also id., _Epistola de viduitate servanda_, Migne 22, p. 550, and the _Epist. de monogamia_, Migne, 22, p. 1046. Ambrose, _de viduis liber unus_, Migne, 16, p. 234. Cf. Ala.n.u.s de Insulis in Migne, vol. 210, p. 194: Vidua ad secundas nuptias non transeat.

[246] See, e.g., St. Cyprian, _de habitu virginum_. Tertullian, _de virginibus velandis_ and _de cultu feminarum_. Treatises on the way widows should dress were written, among others, by St. Paul of Nolan, _Epist_. 23, ---- 133-135--Migne 61; Augustine, St. Fulgentius Rusp., St.

Paulinus Aquil., and St. Petrus Damia.n.u.s.

[247] _De cultu feminarum_, i, 8.

[248] Lavacrum etiam corporum ususque balneorum non sit a.s.siduus, sed eo quo solet intervallo temporis tribuatur, hoc est, semel in mense. Nisi infirmitatis necessitas cogat, corpus saepius non lavandum--Augustine, _de monialibus_, Migne, vol. 33, page 963.

CHAPTER III

RIGHTS OF WOMEN AS MODIFIED BY THE CHRISTIAN EMPERORS

Christianity 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 succ.u.mbed 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).

[Sidenote: Divorce: rescript of Theodosius and Valentian.]

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 a.s.serted vigorously that[249] 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.

[Sidenote: Justinian on divorce]

Justinian made more minute regulations on the subject of divorce. To the valid causes for divorce as laid down by Theodosius and Valentinian he added impotence; if a separation was obtained on this ground, the husband might retain ante-nuptial gifts.[250] Abortion 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.[251] Captivity of either party for a prolonged period of time was always a valid reason. Justinian added also[252] 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_.[253]

[Sidenote: Justin revokes decrees of Justinian.]

Justin, the nephew and successor of Justinian, reaffirmed the right to divorce by mutual consent, thus abrogating the laws of his predecessors.[254] Justinian had ordained 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.[255] Justin, then, made the pious efforts of his uncle naught.

Nothing can more clearly ill.u.s.trate 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 pa.s.sed upon it their severest censures.

[Sidenote: 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 goods were confiscated to the royal purse.[256] A woman guilty of adultery was at once sent to a monastery. After a s.p.a.ce 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.[257]

[Sidenote: Second marriages.]

[Sidenote: Strict laws of Gratian, Valentinian, and Theodosius.]

The legislation of the earlier Christian emperors on second marriages reflects the various feelings of the Church Fathers on the subject.

Under the old law, people could marry as often as they wished without any penalties.[258] 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 d.a.m.ned them with faint praise and urged Christians to be content with one venture. Public opinion, custom, and the influence of the old Roman law were too powerful to allow Christian monarchs to become fanatical on the subject[259]; but certain stricter regulations were introduced by the pious Gratian, Valentinian, and Theodosius, in the years 380, 381, and 382.[260] As under the old laws any widow who married again before the legal time of mourning--a year--had expired, became infamous and lost both cast and all claims to the goods of her deceased husband. She was furthermore not permitted to give a second husband more than one third of her property nor leave him more than one third by will; and she could receive no intestate succession beyond the third degree. A woman who proceeded to a second marriage after the legal period of mourning, must make over at once to the children of the first marriage all the property which her former husband had given or left to her. As to her own personal property, she was allowed to possess it and enjoy the income while she lived, but not to alienate it or leave it by will to any one except the children of the first marriage. As I have before remarked, Roman law constantly had the interest of the children at heart.[261] If there was no issue of the first marriage, then the woman had free control. A mother acquired full right--as the old Senatus consultum Tertullianum had decreed--to the property of a son or daughter who died childless[262]; but if she married a second time, and her son or daughter died without leaving children or grandchildren, she was expelled from all succession and distant relatives acquired the property.[263]

[Sidenote: Justinian moderates these laws to a great degree.]

Justinian changed these enactments to a p.r.o.nounced degree. "We are not making laws that are too bitter against women who marry a second time,"

he remarks,[264] "and we do not want to lead them, in consequence of such action, to the harsh necessity, unworthy of our age, of abstaining from a chaste second marriage and descending to illegitimate connections." He ordained, therefore, that the law mentioned above be annulled and that mothers should have absolutely unrestricted rights of inheritance to a deceased child's property along with the latter's brothers and sisters; and second marriage was never to create any prejudice.[265] In the earlier part of his reign Justinian also forbade husband or wife to leave one another property under the stipulation that the surviving partner must not marry again[266]; but later, when his zeal for reform had become more p.r.o.nounced and fanatical, he revoked this and gave the conditioned party the option either of enjoying the property by remaining unmarried or of forfeiting it by a second union.[267]