The Sexes in Science and History: An inquiry into the dogma of woman's inferiority to manGamble, Eliza Burt
Philosophy
The Sexes in Science and History: An inquiry into the dogma of woman's inferiority to man
Gamble, Eliza Burt
Sex; Women -- History; Women -- Social conditions
We have seen that the principles involved in the Stoic philosophy
were justice, equality, and the subjection of the appetites to the
dictates of reason and conscience. So soon as Greece was subjugated
by Rome, the ablest of the Romans espoused the principles embodied in
this philosophy, and notably among those who became interested in its
tenets were the Roman lawyers, who began immediately to reconstruct the
civil law upon the principles underlying this system.
That it is only through a return to the archaic and natural principles
of justice and right living, the acknowledgment of which at once
establishes the proper relations of the sexes, that women may ever hope
to be free, is plain to all those who have given attention to this
subject. This fact was evidently observed by the Roman lawyers who,
through the persistency with which only those labour who are engaged
in establishing a principle, had so far succeeded in overcoming the
prejudice against sex as to have established a legal code wherein was
practically recognized the equality of women with men.
Doubtless the Romans were as tenacious of their ancient customs,
prejudices, and long-established privileges as have been the people
of any other country; hence we may perhaps form a faint idea of the
obstacles which presented themselves, and of the devices which must
have been resorted to by Roman jurists in an endeavour to remove the
existing legal restrictions upon the liberties of women.
Mr. Maine informs us that Gaius, a celebrated jurist who lived in the
age of the Antonine Cæsars, devoted an entire volume to descriptions of
the ingenious expedients devised by Roman lawyers to evade the letter
of the ancient law, and that it was through this source that the fact
finally became known that in the age of the Antonine Cæsars the legal
disabilities of women had been practically annulled.
From the facts at hand it is observed that the object of the Roman
lawyers was to frame an edictal jurisprudence which should supersede
the older law, or which in effect should annul its power. We are
informed that the prætor was not only the chief equity judge, but that
he was also the common-law magistrate. So soon, therefore, as the edict
had passed through the necessary formalities enabling it to become a
law, the prætor’s court began to apply it in place, or by the side of
the civil law, “which was directly or indirectly repealed without any
express enactment of legislation.” In reference to the legal status of
women in the age of the Antonine Cæsars, Henry Maine observes: “Led by
their theory of natural law, the jurisconsults had at this time assumed
the equality of the sexes as a principle of their code of equity.”[257]
[257] _Ancient Law_, p. 149.
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