know the principles; but that the principles tended to the preservation of the family is proved by the long traditions of the noble Roman houses.
A legal view of the Roman family would be incomplete without consideration of the rights or infringement of rights dependent on it.
The full legal status of a Roman citizen was designated by the word caput. It denoted all the rights that he possessed, but primarily it is a conception of public law, for the possession of private was originally regarded as an annexe to the possession of public rights. Thus caput is retained even though the exercise of private rights is hindered for a time, as it is in the case of a son under power; the filius familias possesses a caput, although it is modified by his subjection to his father. This theory of the dependence of private on public rights, common to Greek and Roman law, probably accounts for the perpetual tutelage of women. The materfamilias holds an honourable position in the household; she is its queen, as her husband is its king, but yet she is subjected by marriage to the legal position of her own daughter, and, on her husband's death, is in the custody of her sons; for a primitive society cannot be brought to believe that a being who cannot fight, and may not fill offices of state or exercise a vote, is capable of looking after its own interests. Appearance before a court of law at Rome, whether for the purpose of defending one's own or another's rights, was regarded as a public act; and Roman sentiment so strongly disapproved a woman's taking part in public life that, when one was found bold enough to plead her cause in the Forum, the Senate in alarm made an official inquiry of the gods what the portent signified.[1] It is possible that in the earliest stage of Roman law women were not regarded as having any rights to defend; later they are regarded as having rights, and therefore a caput, but as incapable of defending them. When, in the latest stage, the disabilities of sex disappear partly through enactment,[2] but chiefly through a series of legal fictions, the capacity of women to defend their own interests first emerges.[3].]*
- ↑ Plut. Comp. Lyc. c. Num. 4 [Greek: legetai goun pote gynaikos eipousês dikên idian en agora pempsai ten synklêton eis theou, pynthanomenên, tinos hara tê polei sêmeion ein to gegenêmenon
- ↑ Such as the lex Claudia, which abolished the legitima tutela agnatorum (Gaius i. 171).
- ↑ A trace of the old disability survives in the prohibition of advocacy to
