ticularly to Caphrania. For Cicero tells us that the softness of speech which often makes the orator, had in his day become a very rare quality, and that certain advocates in his time howled in place of speaking.—(Et oratorem appellat, et suaviloquentiam tribuit; quæ nunc quidem non tam est in plerisque; latrant enim jam quidam oratores, non loquntur.-(Brutus, XV.) At a later day Quintilian and Martial quoted this saying of Cicero.) Roman law forbade women to plead, that is to say to argue in court, on behalf of another. It took care to point out that the original reason of this exclusion, pronounced against all women, rested solely on the doings of Caphrania.

The law 1, 5, Dig. III. 1,—(de postulando), contains the following: (Praetor) feminas prohibet pro aliis postulare; et ratio quidem prohibendi, ne contra pudicitiam sexui congruentem alienis causis se immisceant, ne virilibus officiis fungantur mulieres. Origo vero introducta est a Carfania, improbissima femina, quæ inverecunde postulans et Magistratum inquietans causam dedit Edicto.

The Theodosian Code, (de postulando, II, 10), authorized women to take part in a cause, but only for themselves, and not for others.

Justinian, in his turn, gave a new shape to this legislation by raising to a general and formal command the prohibition against a woman's appearance in matters of justice. He excluded women from all public and civil offices, forbade them to be judges, to plead, to intervene in law on behalf of another, to be procurators, and in this matter, assimilated women to minors.

The text of the law 2, Dig. L. 17, (de diversis regulis juris antiqui), is as follows: Femine ab omnibus officiis civilibus, vel publicis remotæ sunt; et ideo nec judices esse possunt, nec magistratum gerere, nec postulare, nec pro alio intervenire, nec procuratores existere. § 1. Item impubes omnibus officiis civilibus debet abstinere.

The Roman law considers the act of undertaking the defense of another to be a masculine duty which the female sex is. incapable of performing. The text of the law 18, Cod. II, 13 (12) (de procuratoribus), plainly affirms this principle. Alie

nam suscipere defensionem virile est officium, et ultra sexum muliebrem esse constat.

If woman cannot be a judge, thus another text points out, this is not for want of the qualities requisite to the proper performance of those functions, but because of custom.

The law 12, § 2, D., de judiciis, tells us: Quidam enim lege impediuntur ne judices sint, quidam natura, quidam moribus; natura, ut surdus, mutus et perpetuo furiosus et impubes quia judicio carent; moribus: feminæ et servi, non quia non habent judicium, sed quia receptum est ut civilibus officiis non fungantur.

This text proclaims it then without circumlocution: woman, like the slave, cannot be a judge nor take part in the administration of justice, not for any reason based on nature, not because she lacks discernment; the cause of her exclusion is solely custom, "because it is admitted that women and slaves cannot fill civil offices." Custom, the proprieties, this is the sole reason for their disability.

Now who, in our time, among even the most ferocious adversaries of the emancipation of woman, would dare to affirm that this reason, drawn from the customs and the proprieties of eighteen centuries ago, has still in our day the least trace of any validity or of any foundation?

We have just seen, in a brief exposition, the different adjudications of the Roman law which excluded women from the administration of justice. In order to comprehend fully the spirit of this exceptional legislation, one must carry one's self back to the period which put it in force, and analyze the surrounding circumstances which furnished an opportunity for its coming to the light.

Women were freed from tutelage and from the manus. Too soon emancipated, they were making a scandalous misuse of their independence. In the State, they had usurped a preponderating influence, not in order to play the glorious part of the Fabii, the Cornelii, the Julii, the Terenzii, but to foment conspiracies, excite discords, publish proscriptions. Corruption, under the strangest forms, paraded itself in the most shameful excesses. In the midst of this general dissolution

of morals, the Roman law dreamed of restraining the liberty of women with a network of disabilities of a new kind.

Morals had disappeared. In the vain hope of thus restoring the ancient austerity, the legislator, yielding to artless illusions, attempted to create a morality, a hopeless task, for laws have always been powerless to infuse morality into a social body gangrened with licentiousness.

The series of sumptuary laws began with the Oppian law, which forbade women to possess more than a half-ounce of gold, to wear clothing of various colors, to use carriages in Rome, etc. The Voconian law was enacted at about the same period, with intent to prevent women from enriching themselves by will, Let us mention further, among the numerous provisions of the Julian law, that which denied the capacity of adulteresses to testify in a judicial proceeding; finally, a little later, appeared the Velleien decree of the Senate, by virtue of which, in every kind of contract and obligation, woman is incapable of acting as surety, and even of doing any act whatever of intercession which would be as much for the profit of the women as assistance of the men.

In this very time it was that woman was deprived of the right to plead, that she was forbidden to do any judicial act for another, she was even declared incapable of maintaining a banking-house, under the pretext that this was also a masculine occupation. (Lex 12, Dig. II, 13: Feminæ remotæ videntur ab officio argentarii, quum ea opera virilis est.

The Roman law went further yet. The law Julia de adulteriis, in one of its provisions, had forbidden the reception of the testimony of adulteresses. Under the influence of the anti-feministic tendencies which we have indicated, it was attempted to make general against all women, without exception, this incapacity to testify which in the beginning was pronounced solely against adulteresses.-(Lex 18, Dig. XXII, 5: Ex eo quod prohibet lex Julia de adulteriis testimonium dicere condemnatam mulierem, colligitur etiam mulieres testimonii in judicio dicendi jus habere.)

When, desirous to know the reasons for these astonishing prohibitions, we question the Latin authors, they with one ac

cord reply that this incapacity results from the weakness of the sex, from its inexperience, its frivolity, its ignorance of the business of the forum. (Cicero, pro Murena, 12: "propter" infirmitatem consilii."-Ulpian, XI, 1: "propter sexus infirmitatem et propter forensium rerum ignorantiam.") What vulgar reasons are these!

Unquestionably the object of all this legislation, was to enclose the legal activity of woman in the sphere of her family relations, and, by restraining her faculties as much as possible, to diminish thus her ascendancy over man, and by this means to reduce her influence in society. Furthermore, the intent of the legislator was not concealed. It appears very clearly in a historical reminiscence which I do not think it out of place to recall.

It was several years after the passage of the Oppian law, and the women were demanding its repeal, while Porcius Cato desired to make it perpetual. On the voting day, the women, refusing to allow themselves to be turned aside by any representations, came out from their homes and besieged the streets of the city, and the avenues leading to the Forum. They surrounded the citizens who were going to the comitia, and besought them to give them liberty by pronouncing the repeal of the law. Cato, to reach the Forum, had to pass through the crowds of women. It was then, in an explosion of wrath, that he gave utterance to his famous and immortal speech; one of the most incisive and virulent sentences ever pronounced against women. Among other things he said: "Bridle this tyrannical nature and this untamed animal. Our ancestors desired women to be under the power of their fathers, their brothers, their husbands. Remember all those laws by which our fathers restrained the liberty of women, and curbed them under the power of men. And although by these laws your women are enslaved, you can hardly keep them under restraint.

Never suffer them to wrest your rights from you one by one, nor to become your equals, for as soon as they have begun but to be your equals, they will be your superiors." -(Livy, Hist. XXXIV. 2. Date frenos impotenti naturæ et indomito animali. Majores nostri, nullam, ne pri

vatam quidem, rem agere feminas sine auctóre voluerunt; in manu esse parentum, fratrum, virorum.

3: Recen

sete omnia muliebria jura, quibus licentiam earum alligaverint majores nostri, per quæque subjecerint viris, quibus omnibus constrictas vix tamen continere potestis. Quid? Si carpere singula, et extorquere, et exæquari ad extremum viris patiemini, tolerabiles vobis eas fore creditis? Extemplo, simul pares esse cœperint, superiores erunt.)

Lucius Valerius, with manly eloquence, took up the defense of women and declared himself in favor of the repeal. The people were of his opinion, and the defeat of the aged Cato assured the triumph of the Roman women. The Voconian law was not to endure for any length of time. The Velleian decree of the Senate and the prohibition against pleading alone continued in force down to the present day.

WE HAVE ALREADY SHOWN the system of expansion, or rather the wide sweeping action of the Roman law. The Oppian law against the extravagance of women was enacted at the moment when the cohorts of Hannibal were imperiling the very existence of the Republic. This law which, in the thoughts of its authors, was to be of but a transitory and temporary character, Cato tried to make perpetual. It was the same with the provision of the Lex Julia de adulteriis, relating to the testifying in court of adulteresses, but it was attempted to apply as we have seen to all women, this incapacity pronounced in the first place against the lowest minority of them.

This was also the case as to the prohibition against pleading, introduced into Roman legislation to meet the special case of Caphrania.-(Lex 1, `§ 5. Dig. III, 1.)

Another provision of this same law, excluded from the profession of advocate all blind persons, and this also was precisely because of a particular circumstance:

One day, after the judge had left the bench, a blind man, a certain Publius, had continued to plead. This act, quite insignificant in itself, provoked an immense deal of hilarity in Rome, which it appeared was of a kind to injure the prestige of justice. The magistrates were incensed at it, and at once the edict of the praetor pronounced the exclusion of all blind