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law, the prætor’s court began to apply it in place, or by the side of the civil law, “which was directly or indirectly repealed without any express enactment of legislation.”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]