§ 19. Elevation of Woman and the Family.

The benign effect of Christianity on legislation in the Graeco-Roman empire is especially noticeable in the following points:

1. In the treatment of women. From the beginning, Christianity labored, primarily in the silent way of fact, for the elevation of the female sex from the degraded, slavish position, which it occupied in the heathen world;¹⁸²¹⁸²   On this subject, and on the heathen family life, comp. vol. i. § 91. and even in this period it produced such illustrious models of female virtue as Nonna, Anthusa, and Monica, who commanded the highest respect of the heathens themselves. The Christian emperors pursued this work, though the Roman legislation stops considerably short of the later Germanic in regard to the rights of woman. Constantine in 321 granted women the same right as men to control their property, except in the sale of their landed estates. At the same time, from regard to their modesty, he prohibited the summoning them in person before the public tribunal. Theodosius I. in 390 was the first to allow the mother a certain right of guardianship, which had formerly been intrusted exclusively to men. Theodosius II. in 439 interdicted, but unfortunately with little success, the scandalous trade of the lenones, who lived by the prostitution of women, and paid a considerable license tax to the state.¹⁸³¹⁸³   Cod. Theod. lib. xv. tit. 8: de lenonibus. Woman received protection in various ways against the beastly passion of man. The rape of consecrated virgins and widows was punishable, from the time of Constantine, with death.¹⁸⁴¹⁸⁴   C. Theod. ix. 24: de raptu virginum et viduarum (probably nuns and deaconesses).

2. In the marriage laws, Constantine gave marriage its due freedom by abolishing the old Roman penalties against celibacy and childlessness.¹⁸⁵¹⁸⁵   C. Theod. viii. 16, 1. Comp. Euseb. Vit. Const. iv. 26. On the other hand, marriage now came to be restricted under heavy penalties by the introduction of the Old Testament prohibitions of marriage within certain degrees of consanguinity, which subsequently were arbitrarily extended even to the relation of cousin down to the third remove.¹⁸⁶¹⁸⁶   C. Theod. iii. 12: de incestis nuptiis. Justinian forbade also marriage between godparent and godchild, on the ground of spiritual kinship. But better than all, the dignity and sanctity of marriage were now protected by restrictions upon the boundless liberty of divorce which had obtained from the time of Augustus, and had vastly hastened the decay of public morals. Still, the strict view of the fathers, who, following the word of Christ, recognized adultery alone as a sufficient ground of divorce, could not be carried out in the state.¹⁸⁷¹⁸⁷   C. Theod. iii. 16: de repudiis. Hence Jeromesays in view of this, Ep. 30 (al. 84) ad Oceanum: “Aliae sunt leges Caesarum, aliae Christi; aliud Papinianus [the most celebrated Roman jurist, died a.d.212], aliud Paulus noster praecipit.” The legislation of the emperors in this matter wavered between the licentiousness of Rome and the doctrine of the church. So late as the fifth century we hear a Christian author complain that men exchange wives as they would garments, and that the bridal chamber is exposed to sale like a shoe on the market! Justinian attempted to bring the public laws up to the wish of the church, but found himself compelled to relax them; and his successor allowed divorce even on the ground of mutual consent.¹⁸⁸¹⁸⁸   Gibbon: “The dignity of marriage was restored by the Christians .... The Christian princes were the first who specified the just causes of a private divorce; their institutions, from Constantineto Justinian, appear to fluctuate between the custom of the empire and the wishes of the church, and the author of the Novels too frequently reforms the jurisprudence of the Code and the Pandects .... The successor of Justinian yielded to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent.”

Concubinage was forbidden from the time of Constantine, and adultery punished as one of the grossest crimes.¹⁸⁹¹⁸⁹   In a law of 326 it is called “facinus atrocissimum, scelus immane.” Cod. Theod. l. ix. tit. 7, 1. 1 sq. And the definition of adultery, too, was now made broader. According to the old Roman law, the idea of adultery on the part of the man was limited to illicit intercourse with the married lady of a free citizen, and was thought punishable not so much for its own sake, as for its encroachment on the rights of another husband. Hence Jerome says, l.c., of the heathen: “Apud illos viris impudicitiae frena laxantur, et solo stupro et adulterio condemnato passim per lupanaria et ancillulas libido permittitur; quasi culpam dignitas faciat, non voluntas. Apud nos quod non licet feminis, aeque non licet viris, et eadem servitus pari conditione censetur.” Yet the law, even under the emperors, still excepted carnal intercourse with a female slave from adultery. Thus the state here also stopped short of the church, and does to this day in countries where the institution of slavery exists. Yet here also pagan habit ever and anon reacted in practice, and even the law seems to have long tolerated the wild marriage which rested only on mutual agreement, and was entered into without convenant, dowry, or ecclesiastical sanction.¹⁹⁰¹⁹⁰   Even a council at Toledo in 398 conceded so far on this point as to decree, can. 17: “Si quis habens uxorem fidelis concubinam habeat, non communicet. Ceterum is, qui non habet uxorem et pro uxore concubinam habeat, a communione non repellatur, tantum ut unius mulieris aut uxoris aut concubinae, ut ei placuerit, sit conjunctione contentus. Alias vero vivens abjiciatur donec desinat et per poenitentiam, revertatur.” Solemnization by the church was not required by the state as the condition of a legitimate marriage till the eighth century. Second marriage, also, and mixed marriages with heretics and heathens, continued to be allowed, notwithstanding the disapproval of the stricter church teachers; only marriage with Jews was prohibited, on account of their fanatical hatred of the Christians.¹⁹¹¹⁹¹   Cod. Theod. iii. 7, 2; C. Justin. i. 9, 6. A proposal of marriage to a nun was even punished with death (ix. 25, 2).

3. The power of fathers over their children, which according to the old Roman law extended even to their freedom and life, had been restricted by Alexander Severus under the influence of the monarchical spirit, which is unfavorable to private jurisdiction, and was still further limited under Constantine. This emperor declared the killing of a child by its father, which the Pompeian law left unpunished, to be one of the greatest crimes.¹⁹²¹⁹²   a.d.318; Valentinian did the same in 374. Cod. Theod. ix. tit. 14 and 15. Comp. the Pandects, lib. xlviii. tit. 8, l ix. But the cruel and unnatural practice of exposing children and selling them into slavery continued for a long time, especially among the laboring and agricultural classes. Even the indirect measures of Valentinian and Theodosius I. could not eradicate the evil. Theodosius in 391 commanded that children which had been sold as slaves by their father from poverty, should be free, and that without indemnity to the purchasers; and Justinian in 529 gave all exposed children without exception their freedom.¹⁹³¹⁹³   Cod. Theod. iii. 3, 1; Cod. Just. iv. 43, 1; viii. 52, 3. Gibbon says: “The Roman empire was stained with the blood of infants, till such murders were included, by Valentinian and his colleagues, in the letter and spirit of the Cornelian law. The lessons of jurisprudence and Christianity had been inefficient to eradicate this inhuman practice, till their gentle influence was fortified by the terrors of capital punishment.”