A Short History of Women's Rights
by
Eugene A. Hecker
Part 2 out of 5
indeed a lottery and the vices of women are too great to make it worth
while.[229] "The sex is practiced in deceiving," observes St.
Maximus.[230] St. Augustine disputes subtly whether woman is the image
of God as well as man. He says no, and proves it thus[231]: The Apostle
commands that a man should not veil his head, because he is the image of
God; but the woman must veil hers, according to the same Apostle;
therefore the woman is not the image of God. "For this reason, again,"
continues the Saint, "the Apostle says 'A woman is not permitted to
teach, nor to have dominion over her husband.'" Bishop Marbodius calls
woman a "pleasant evil, at once a honeycomb and a poison" and indicts
the sex,[232] something on the order of Juvenal or Jonathan Swift, by
citing the cases of Eve, the daughters of Lot, Delilah, Herodias,
Clytemnestra, and Progne. The way in which women were regarded as at
once a blessing and a curse is well illustrated also in a distich of
Sedulius: "A woman alone has been responsible for opening the gates of
death; a woman alone has been the cause of a return to life."[233]
That women should be in subjection, in accordance with the dictum of
Paul, the Church Fathers assert emphatically. "How can it be said of a
woman that she is the image of God," exclaims St. Augustine,[234] "when
it is evident that she is subject to the rule of her husband and has no
authority! Why, she can not teach, nor be a witness, nor give security,
nor act in court; how much the more can she not govern!" Women are
commanded again and again not to perform any of the functions of men and
to yield a ready and unquestioning obedience to their husbands.[235]
The Fathers also insist that marriage without a paternal parent's
consent is fornication.[236]
Marriage was looked upon as a necessary evil, permitted, indeed, as a
concession to the weakness of mankind, but to be avoided if possible.
"Celibacy is to be preferred to marriage," says St. Augustine.[237]
"Celibacy is the life of the angels," remarks St. Ambrose.[238]
"Celibacy is a spiritual kind of marriage," according to St.
Optatus.[239] "Happy he," says Tertullia[240] "who lives like Paul!"
The same saint paints a lugubrious picture of marriage and the "bitter
pleasure of children" (_liberorum amarissima voluptate_) who are burdens
and just as likely as not will turn out criminals. "Why did the Lord cry
woe unto those that are pregnant and give suck, unless it was to call
attention to the fact that children will be a hindrance on the day of
judgment?"[241] When such views were entertained of marriage, it need
not seem remarkable that Tertullian and St. Paul of Nolan, like Tolstoy
to-day, discovered the blessings of a celibate life after they were
married and ran away from their wives.[242] Jerome finds marriage useful
chiefly because it produces virgins.[243]
As for second marriages, the Montanist and the Novatian sects condemned
them absolutely, on the ground that if God has removed a wife or husband
he has thereby signified his will to end the marrying of the parties;
Tertullian calls second marriage a species of prostitution.[244]Jerome
expresses the more tolerant and orthodox view: "What then? Do we condemn
second marriages? Not at all; but we praise single ones. Do we cast the
twice-married from the Church? Far from it; but we exhort the
once-married to continence. In Noah's ark there were not only clean, but
also unclean animals."[245]
As the Fathers were very well aware of the subtle influence of dress on
the sexual passions, we have a vast number of minute regulations
directing virgins, matrons, and widows to be clothed simply and without
ornament; virgins were to be veiled.[246] Tertullian, with that keen
logic of which the Church has always been proud in her sons, argues that
inasmuch as God has not made crimson or green sheep it does not behoove
women to wear colours that He has not produced in animals
naturally.[247] St. Augustine forbids nuns to bathe more than once a
month, unless under extreme necessity.[248]
As soon as the Church begins to exercise an influence upon law, we shall
expect to see the legal position of women changed in accordance with
certain general principles outlined above, viz: I. That inasmuch as Adam
was formed before Eve and as women are the weaker vessels, they should
confine themselves to those duties only which society has, from time
immemorial, assigned them as their peculiar sphere. II. They should be
meek, and not oppose father or husband; and to these they should go for
advice on all matters. III. All license, such as the Roman woman's right
of taking the initiative in a divorce, must never be tolerated. IV. They
should never transgress the bounds of strictest decorum in conduct and
dress, lest they seduce men; and they must never be conspicuous in
public or attempt to perform public functions. V. They are to be given
due honour and are to be cared for properly.
The legal rights of women would be affected, moreover, by a difference
in the spirit of the law. The Roman jurist derived his whole sanction
from reason and never allowed religious considerations, as such, to
influence him when legislating on women. He recognised that laws are not
immutable, but must be changed to fit the growth of equity and
tolerance. No previous authority was valid to him if reason suggested
that the authority's dictum had outlived its usefulness and must be
adapted to larger ideas. It never occurred to him to make the
inferiority of woman an act of God. On the other hand, the Church
referred everything to one unchanging authoritative source, the Gospels
and the writings of the Apostles; faith and authority took the place of
reason; and any attempt to question the injunctions of the Bible was
regarded as an act of impiety, to be punished accordingly. And as the
various regulations about women had now a divine sanction, the
permanence of these convictions was doubly assured.
SOURCES
I. The Bible.
II. Patrologia Latina: edidit J.P. Migne. Parisiis. 221 volumes
(finished 1864).
NOTES:
[212] _Matthew_ 5, 27 ff.
[213] _Matthew_ 5, 31 ff.; id. 19, 3 ff. _Mark_ 10, 2-12. _Luke_ 16, 18.
[214] Plutarch lived in the second century A.D.; but he has inherited
the Greek point of view and advises a wife to bear with meekness the
infidelities of the husband--see _Praecep. Coniug_., 16. His words are
often curiously similar to those of the Apostles, e.g., _Coniug.
Praecep_., 33: "The husband shall rule the wife not as if master of a
chattel, but as the soul does the body." Id. 37: "Wives who are sensible
will be silent when their husbands are angry and vent their passion;
when their husbands are silent, then let them speak to them and mollify
them." However, like the Apostles, he enjoins upon husbands to honour
their wives; his essay on the "Virtues of Women"--[Greek: gynaikon
aretai]--is an affectionate tribute to their worth.
Some of the respectable Puritan gentlemen at Rome also held that a wife
be content to be a humble admirer of her husband (e.g., Pliny, _Paneg_.,
83, hoc efficiebat, quod mariti minores erant ... nam uxori sufficit
obsequii gloria, etc.). But Roman law insisted that what was morally
right for the man was equally so for the woman; just as it compelled a
husband himself to observe chastity, if he expected it from his wife.
[215] _Ecclesiasticus_ 42, 14.
[216] _Leviticus_ xii, 1-5.
[217] _Romans_ 7, 2-4.
[218] _Corinthians_ i, 7, 39.
[219] _Corinthians_ i, 7, 1 ff.
[220] _Corinthians_ i, 7, 37.
[221] _Ephesians_ 5, 22 and 33.
[222] _Peter_ i, 3, 7.
[223] _Corinthians_ i, 14, 34.
[224] _Timothy_ i, 2, 12-15.
[225] _Corinthians_ i, II, 8.
[226] _Timothy_ i, 2, 9. _Peter_ i, 3.
[227] Abelard, Ep., 9, in vol. 178, p. 325, of Migne: Beatus Hieronymus
... tanto magis necessarium amorem huius studii (i.e. the Scriptures)
censuit, quanto eas naturaliter infirmiriores et carne debiliores esse
conspexit. Cf. St. Paul of Nolan, _Letters_, 23, Sec. 135--Migne 61, p.
273: Hi enim (i.e. evil spirits) petulantius infirmiora vasa pertentant,
sicut non Adam, sed Evam coluber aggressus est.
[228] Adversus Iovianum, i, 48--Migne, vol. 23, p. 278.
[229] Adversus Iovianum, i, 28--Migne, vol. 23, pp. 249-250: Qui enim
ducit uxorem, in ambiguo est, utrum odiosam an amabilem ducat. Si
odiosam duxerit, ferri non potest. Si amabilem, amor illius inferno et
arenti terrae et incendio comparatur. He quotes the Old Testament,
especially _Pr_. 30, 16, to support his views.
[230] S. Maximi Episcopi Taurinensis--Homilia 53, I--Migne, vol. 57, p.
350.
[231] Augustinus: _Quaest. ex vet. Test_., 21: an mulier imago Dei sit
... unde et Apostolus, Vir quidem, inquit, non debet velare caput, cum
sit imago et gloria Dei; mulier autem, inquit, velet caput. Quare? Quia
non est imago Dei. Unde denuo dicit Apostolus: Mulieri autem docere non
permittitur, neque dominari in virum. Migne, vol. 35, p. 2228.
[232] Migne, vol. 171, pp. 1698-1699:
Femina dulce malum, pariter favus atque venenum, Melle linens gladium
cor confodit et sapientum. Quis suasit primo vetitum gustare parenti?
Femina. Quis patrem natas vitiare coegit? Femina. Quis fortem spoliatum
crine peremit? Femina. Quis iusti sacrum caput ense recidit?
Femina.--etc., ad lib.
However, in another poem he acknowledges that there is nothing more
beautiful than a good woman:
In cunctis quae dante Deo concessa videntur Usibus humanis, nil
pulchrius esse putamus, Nil melius muliere bona, etc.
[233] Migne, vol. 80, p. 307. The sentiment is more fully developed in
another poem--Migne, vol. 80, p. 307:
Femina causa fuit humanae perditionis; Qua reparatur homo, femina causa
fuit. Femina causa fuit cur homo ruit a paradiso; Qua redit ad vitam,
femina causa fuit. Femina prima parens exosa, maligna, superba; Femina
virgo parens casta, benigna, pia.
[234] _Quaest. ex vet. Test_., 45; Migne, vol. 35, p. 2244.
[235] E.g., Tertullian, _de virg. vel_., 9. St. Paul of Nolan, letter
23, Sec. 135--Migne, 61, p. 273. Id., letter 26, vol. 61, p. 732 of Migne.
Cf. Augustine, letter 262, Sec. 5--Migne, 33, p. 1079.
[236] Basilius, _ad Amphil_., c.42: Matrimonia sine iis, qui potestatem
habent, fornicationes sunt.
Ambrose says: Honorantur parentes Rebeccae muneribus, consulitur puella
non de sponsalibus, illa enim expectat iudicium parentum; non est enim
virginalis pudoris eligere maritum.
[237] Virginitas praeferenda coniugio--August., vol. 44, p. 142 of
Migne. The Council of Trent, eleven centuries later, in its
twenty-fourth session, re-echoed this sentiment and anathematised any
one who should deny it.
[238] Migne, vol. 16, p. 342.
[239] Id., II, p. 1074.
[240] Tertullian _ad uxorem_, i, 3.
[241] Id. _ad uxorem_, i, 5. See also Gregory of Nyassa, _de Virg_.,
iii, on the evils of matrimony.
[242] v. Tertullian, _ad uxorem_. For Paul of Nolan, see Migne, vol. 61,
p. 22.
[243] Laudo nuptias, laudo coniugium, sed quia mihi virgines generant.
[244] _Ad uxorem_, i, 7 and 9: non aliud dicendum erit secundum
matrimonium quam species stupri.
[245] Jerome, _Epist_., 123. See also id., _Epistola de viduitate
servanda_, Migne 22, p. 550, and the _Epist. de monogamia_, Migne, 22,
p. 1046. Ambrose, _de viduis liber unus_, Migne, 16, p. 234. Cf. Alanus
de Insulis in Migne, vol. 210, p. 194: Vidua ad secundas nuptias non
transeat.
[246] See, e.g., St. Cyprian, _de habitu virginum_. Tertullian, _de
virginibus velandis_ and _de cultu feminarum_. Treatises on the way
widows should dress were written, among others, by St. Paul of Nolan,
_Epist_. 23, Sec.Sec. 133-135--Migne 61; Augustine, St. Fulgentius Rusp., St.
Paulinus Aquil., and St. Petrus Damianus.
[247] _De cultu feminarum_, i, 8.
[248] Lavacrum etiam corporum ususque balneorum non sit assiduus, sed eo
quo solet intervallo temporis tribuatur, hoc est, semel in mense. Nisi
infirmitatis necessitas cogat, corpus saepius non lavandum--Augustine,
_de monialibus_, Migne, vol. 33, page 963.
CHAPTER III
RIGHTS OF WOMEN AS MODIFIED BY THE CHRISTIAN EMPERORS
Christianity became the state religion under Constantine, who issued the
Edict of Milan, giving toleration to the Christians, in the year 313.
The emperors from Constantine through Justinian (527-565) modified the
various laws pertaining to the rights of women in various ways. To the
enactments of Justinian, who caused the whole body of the Roman law to
be collected, I intend to give special attention. We must not, as yet,
expect to find the strict views of the Church Fathers carried out in any
severe degree. On the contrary the old Roman law was still so powerful
that it was for the most part beyond the control of ecclesiasts.
Justinian was an ardent admirer of it and could not escape from its
prevailing spirit. Canon law had not yet developed. When the old Roman
civilisation in Italy has succumbed completely to its barbarian
conquerors; when the East has been definitely sundered from the West;
when the Church has risen supreme, has won temporal power, and has
developed canon law into a force equal to the civil law,--then finally
we shall expect to see the legal rights of women changed in accordance
with two new world forces--the Roman Catholic Church and the Germanic
nations. I shall now discuss legislation having to do with my subject
under the Christian emperors from Constantine (306-337) through the
reign of Justinian (527-565).
[Sidenote: Divorce: rescript of Theodosius and Valentian.]
The power of husband and wife to divorce at will and for any cause,
which we have seen obtained under the old Roman law, was confined to
certain causes only by Theodosius and Valentinian (449 A.D.). These
emperors asserted vigorously that[249] the dissolution of the marriage
tie should be made more difficult, especially out of regard to the
children. Pursuant to this idea the power of divorce was given for the
following reasons alone: adultery, murder, treason, sacrilege, robbery;
unchaste conduct of a husband with a woman not his wife and vice-versa;
if a wife attended public games without her husband's permission; and
extreme physical violence of either party. A woman who sent her husband
a bill of divorce for any other reason forfeited her dowry and all
ante-nuptial gifts and could not marry again for five years, under
penalty of losing all civil rights. Her property accrued to her husband
to be kept in trust for the children.
[Sidenote: Justinian on divorce]
Justinian made more minute regulations on the subject of divorce. To the
valid causes for divorce as laid down by Theodosius and Valentinian he
added impotence; if a separation was obtained on this ground, the
husband might retain ante-nuptial gifts.[250] Abortion committed by the
wife or bathing with other men than her husband or inveigling other men
to be her paramours--these offences on the part of the wife gave her
husband the right of divorce.[251] Captivity of either party for a
prolonged period of time was always a valid reason. Justinian added
also[252] that a man who dismissed his wife without any of the legal
causes mentioned above existing or who was himself guilty of any of
these offences must give to his wife one fourth of his property up to a
sum not to exceed one hundred _librae_ of gold, if he owned property
worth four hundred _librae_ or more; if he had less, one fourth of all
he possessed was forfeit. The same penalties held for the wife who
presumed to dismiss her husband without the offences legally recognised
existing. The forfeited money was at the free disposal of the blameless
party if there were no children; these being extant, the property must
be preserved intact for their inheritance and merely the usufruct could
be enjoyed by the trustees. A woman who secured a divorce through a
fault of her husband had always to wait at least a year before marrying
again _propter seminis confusionem_.[253]
[Sidenote: Justin revokes decrees of Justinian.]
Justin, the nephew and successor of Justinian, reaffirmed the right to
divorce by mutual consent, thus abrogating the laws of his
predecessors.[254] Justinian had ordained that if husband and wife
separated by mutual consent, they were to be forced to spend the rest of
their lives in a convent and forfeit to it one third of their
goods.[255] Justin, then, made the pious efforts of his uncle naught.
Nothing can more clearly illustrate than his decree how small a power
the Church still possessed to mould the tenor of the law; for such a
thing as divorce by mutual consent, without any necessary reason, was a
serious misdemeanour in the eyes of the Church Fathers, who passed upon
it their severest censures.
[Sidenote: Adultery.]
On the subject of adultery Justinian enacted that if the husband was the
guilty party, the dowry and marriage donations must be given his wife;
but the rest of his property accrued to his relatives, both in ascending
and descending lines, to the third degree; these failing, his goods
were confiscated to the royal purse.[256] A woman guilty of adultery was
at once sent to a monastery. After a space of two years her husband
could take her back again, if he so wished, without prejudice. If he did
not so desire, or if he died, the woman was shorn and forced to spend
the rest of her life in a nunnery; two thirds of her property were given
to her relatives in descending line, the other third to the monastery;
if there were no descendants, ascendants got one third and the monastery
two thirds; relatives failing, the monastery took all; and in all cases
goods inserted in the dowry contract were to be kept for the
husband.[257]
[Sidenote: Second marriages.]
[Sidenote: Strict laws of Gratian, Valentinian, and Theodosius.]
The legislation of the earlier Christian emperors on second marriages
reflects the various feelings of the Church Fathers on the subject.
Under the old law, people could marry as often as they wished without
any penalties.[258] But we have seen that among some of the Churchmen
second marriages were held in peculiar abhorrence, and third nuptials
were regarded as a hideous sin; while the orthodox clergy, like St.
Augustine and St. Jerome, permitted second and third marriages, but
damned them with faint praise and urged Christians to be content with
one venture. Public opinion, custom, and the influence of the old Roman
law were too powerful to allow Christian monarchs to become fanatical on
the subject[259]; but certain stricter regulations were introduced by
the pious Gratian, Valentinian, and Theodosius, in the years 380, 381,
and 382.[260] As under the old laws any widow who married again before
the legal time of mourning--a year--had expired, became infamous and
lost both cast and all claims to the goods of her deceased husband. She
was furthermore not permitted to give a second husband more than one
third of her property nor leave him more than one third by will; and she
could receive no intestate succession beyond the third degree. A woman
who proceeded to a second marriage after the legal period of mourning,
must make over at once to the children of the first marriage all the
property which her former husband had given or left to her. As to her
own personal property, she was allowed to possess it and enjoy the
income while she lived, but not to alienate it or leave it by will to
any one except the children of the first marriage. As I have before
remarked, Roman law constantly had the interest of the children at
heart.[261] If there was no issue of the first marriage, then the woman
had free control. A mother acquired full right--as the old Senatus
consultum Tertullianum had decreed--to the property of a son or daughter
who died childless[262]; but if she married a second time, and her son
or daughter died without leaving children or grandchildren, she was
expelled from all succession and distant relatives acquired the
property.[263]
[Sidenote: Justinian moderates these laws to a great degree.]
Justinian changed these enactments to a pronounced degree. "We are not
making laws that are too bitter against women who marry a second time,"
he remarks,[264] "and we do not want to lead them, in consequence of
such action, to the harsh necessity, unworthy of our age, of abstaining
from a chaste second marriage and descending to illegitimate
connections." He ordained, therefore, that the law mentioned above be
annulled and that mothers should have absolutely unrestricted rights of
inheritance to a deceased child's property along with the latter's
brothers and sisters; and second marriage was never to create any
prejudice.[265] In the earlier part of his reign Justinian also forbade
husband or wife to leave one another property under the stipulation that
the surviving partner must not marry again[266]; but later, when his
zeal for reform had become more pronounced and fanatical, he revoked
this and gave the conditioned party the option either of enjoying the
property by remaining unmarried or of forfeiting it by a second
union.[267]
[Sidenote: Breaking of engagements.]
Constantine ordained,[268] in the year 336, that if an engagement was
broken by the death of one of the contracting parties and if the
_osculum_[269] had taken place, half of whatever donations had been
given was to be handed over to the surviving party and half to the heirs
of the deceased; but if the solemn _osculum_ had not yet taken place,
all gifts went to the heirs of the deceased. There was also a law that
if either party broke the engagement to enter monastic life, the man who
did so lost all that he had given by way of earnest money for the
marriage contract (_arrarum nomine_); if it was the woman who took the
initiative, she was compelled to return twice the amount of any sums she
had received. This was changed by Justinian, who enacted that those who
broke an engagement to enter monastic life should merely return or
receive whatever donations had been made.[270] Constantine and his
successors abrogated the old time Julian laws, which had inflicted
certain penalties--such as limited rights of inheritance--on men and
women who did not marry.[271]
[Sidenote: Changes in the law of gifts.]
I have already pointed out that gifts between husband and wife were
illegal and I have explained the reasons. Justinian allowed the husband
to make donations to his wife, in such wise, however, that all chance of
intent to defraud might be absent.[272] He ordained also that if husband
or wife left the married state to embrace a celibate life, each party
was to keep his or her own property as per marriage contract or as each
would legitimately in the case of the other's death.[273] If any one,
after vowing the monastic life, returned to the world, his or her goods
were forfeit to the monastery which he or she had left.[274]
[Sidenote: Various enactments on marriage.]
The consent of the father or, if he was dead, of near relatives was
emphatically declared necessary by the Christian emperors for a marriage
and the woman had practically no will of her own although, if several
suitors were proposed to her, she might be requested to name which one
she preferred.[275] Marriage with a Jew was treated as adultery.[276]
Women who belonged to heretical sects were to have no privileges.[277]
Justinus and Justinian abrogated the old law which forbade senators to
marry freedwomen or any woman who had herself or whose parents had
followed the stage. Actresses were now permitted, on giving up their
profession, to claim all the rights of other free women; and a senator
could marry such or even a freedwoman without prejudice.[278]
[Sidenote: Changes in the laws of inheritance.]
Under the old law, as we have seen, a son and a daughter had equal
rights to intestate succession; but beyond the relationship of daughter
to father or sister to brother women had no rights to intestate
succession unless there were no agnates, that is, male relatives on the
father's side. Thus, an aunt would not be called to the estate of a
nephew who died childless, but the uncle was regularly admitted. So,
too, a nephew was admitted to the intestate succession of an uncle, who
died without issue, but the niece was shut out. All this was changed by
Justinian, who gave women the same rights of inheritance as men under
such conditions.[279] If the children were unorthodox, they were to have
absolutely no share of either parent's goods.[280]
[Sidenote: Women as guardians.]
[Sidenote: In suits.]
The Christian emperors permitted widows to be guardians over their
children if they promised on oath not to marry again and gave security
against fraud.[281] Justinian forbade women to act by themselves in any
legal matters.[282]
[Sidenote: Bills of attainder.]
Arcadius and Honorius (397 A.D.) enacted some particularly savage bills
of attainder, which were in painful contrast to the clemency of their
pagan predecessors. Those guilty of high treason were decapitated and
their goods escheated to the crown. "To the sons of such a man [i.e.,
one condemned for high treason]," write these amiable Christians,[283]
"we allow their lives out of special royal mercy--for they ought really
to be put to death along with their fathers--but they are to receive no
inheritances. Let them be paupers forever; let the infamy of their
father ever follow them; they may never aspire to office; in their
lasting poverty let death be a relief and life a punishment. Finally,
any one who tries to intercede for these with us is also to be
infamous."[284] However, to the daughters of the condemned these
emperors graciously granted one fourth of their mother's but not any of
their father's goods. In the case of crimes other than high treason the
children or grandchildren were allowed one half of the estate.[285]
Constantine decreed that a wife's property was not to be affected by the
condemnation of her husband.[286]
[Sidenote: Rape.]
Ravishers of women, even of slaves and freedwomen, were punished by
Justinian with death; but in the case of freeborn women only did the
property of the guilty man and his abettors become forfeit to the
outraged victim. A woman no longer had the privilege of demanding her
assailant in marriage.[287]
SOURCES
Roman Law as cited in Chapter I, especially the _Novellae_ of Justinian.
NOTES:
[249] Codex, v, 17, 8 contains this rescript in full.
[250] Codex, v, 17, 10.
[251] Codex, v, 17, 11.
[252] Id.
[253] Novellae, 22, 18.
[254] Novellae, 140, 1: Antiquitus quidem licebat sine periculo tales
(i.e., those of incompatible temperament) ab invicem separari secundum
communem voluntatem et consensum hoc agentes, sicut et plurimae tunc
leges extarent hoc dicentes et _bona gratia_ sic procedentem solutionem
nuptiarum patria vocitantes voce. Postea vero divae memoriae nostro
patri.... legem sancivit prohibens cum consensu coniugia solvi.... Haec
igitur aliena nostris iudicantes temporibus in praesenti sacram
constituimus legem, per quam sancimus licere ut antiquitus consensu
coniugum solutiones nuptiarum fieri.
[255] Novellae, 134, 11.
[256] Novellae, 134, 10.
[257] Novellae, 134, 10.
[258] Novellae, 22 (praefatio): Antiquitas equidem non satis aliquid de
prioribus aut secundis perserutabatur nuptiis, sed licebat et patribus
et matribus et ad plures venire nuptias et lucro nullo privari, et causa
erat in simplicitate confusa.
[259] The language of some of them is pretty strong, however--matre iam
secundis nuptiis _funestata_--Codex, v, 9, 3 (Gratian, Valentinian,
Theodosius).
[260] For these see Codex, v, 9, 1 and 2 and 3.
[261] Cf. Codex, v, 9, 4. Nos enim hac lege id praecipue custodiendum
esse decrevimus, ut ex quocumque coniugio suscepti filii patrum suorum
sponsalicias retineant facilitates.
[262] Codex, vi, 56, 5.
[263] Novellae, ii, 3: ex absurditate legis, licet praemoriantur filii
omnes, non relinquentes filios aut nepotes, nihilominus supplicium
manet, et non succedit eis mater, sed expellitur ab eorum inhumane
successione ... sed succedunt quidem illis aliqui ex longa cognatione.
[264] Novellae, ii, 3.
[265] Novellae ii, 3.
[266] Codex, vi, 40, 2 and 3.
[267] Novellae, 22, 44: unde sancimus, si quis prohibuerit ad aliud
venire matrimonium, etc.
[268] Codex, v, 3, 16.
[269] The _osculum_ was a sort of "donation on account of marriage" made
on the day of the formal engagement.
[270] Codex, i, 3, 54 (56).
[271] Codex, viii, 57 (58), I and 2. Cf. Codex, viii, 58 (59), 1 and 2.
[272] Codex, v, 3, 10.
[273] Codex, i, 3, 54 (56). Gregory of Tours informs us that according
to the Council of Nicaea--325 A.D.--a wife who left her husband, to whom
she was happily married, to enter a nunnery incurred excommunication. He
means probably: if she went without her husband's consent. Greg. 9, 33:
Tunc ego accedens ad monasterium canonum Nicaenorum decreta relegi, in
quibus continetur: quia si quae reliquerit virum et thorum, in quo bene
vexit, spreverit, dicens quia non sit ei portio in illa caelestis regni
gloria qui fuerit coniugio copulatus, anathema sit. (Note of editor:
Videtur esse canon 14 concilii Grangensis, quod concilium veteres
Nicaeno subiungere solebant; idque indicat titulus in veteribus
scriptis.)
[274] Codex, i, 3, 54 (56).
[275] Codex, v, 4, 20, and 5, 18.
[276] Codex, i, 9, 6.
[277] Novellae, cix, 1.
[278] Codex, v, 4, 23 and 28.
[279] Codex, vi, 58, 14.
[280] Codex, i, 5, 19.
[281] Codex, v, 35, 2 and 3.
[282] Codex, ii, 55, 6.
[283] Codex, ix, 8, 5.
[284] This law was evidently lasting, for it is quoted with approval by
Pope Innocent III, in the year 1199--see Friedberg, _Corpus Iuris
Canonici_, vol. ii, p. 782.
[285] Codex, ix, 49, 10.
[286] Codex, v, 16, 24.
[287] For all these enactments see Codex, i, 3, 53 (54), and ix, 13.
CHAPTER IV
WOMEN AMONG THE GERMANIC PEOPLES
A second world force had now come into its own. The new power was the
Germanic peoples, those wandering tribes who, after shattering the Roman
Empire, were destined to form the modern nations of Europe and to find
in Christianity the religion most admirably adapted to fill their
spiritual needs and shape their ideals. In the year 476 the barbarian
Odoacer ascended the throne of the Caesars. He still pretended to govern
by virtue of the authority delegated to him by Zeno, emperor at
Constantinople; but the rupture between East and West was becoming final
and after the reign of Justinian (527-565) it was practically complete.
Henceforth the eastern empire had little or nothing to do with western
Europe and subsisted as an independent monarchy until Constantinople was
taken by the Turks in 1453. I shall not concern myself with it any
longer.
In western Europe, then, new races with new ideals were forming the
nations that to-day are England, Germany, France, Spain, Italy, and
Austria. It is interesting to note what some of these barbarians
thought about women and what place they assigned them.
[Sidenote: Julius Caesar's account.]
Our earliest authorities on the subject are Julius Caesar and Tacitus.
Caesar informs us[288] that among the Gauls marriage was a well
recognized institution. The husband contributed of his own goods the
same amount that his wife brought by way of dowry; the combined property
and its income were enjoyed on equal terms by husband and wife. If
husband or wife died, all the property became the possession of the
surviving partner. Yet the husband had full power of life and death over
his wife as over his children; and if, upon the decease of a noble,
there were suspicions regarding the manner of his death, his wife was
put to inquisitorial torture and was burnt at the stake when adjudged
guilty of murder. Among the Germans women seem to have been held in
somewhat greater respect. German matrons were esteemed as prophetesses
and no battle was entered upon unless they had first consulted the lots
and given assurance that the fight would be successful.[289] As for the
British, who were not a Germanic people, Caesar says that they practiced
polygamy and near relatives were accustomed to have wives in
common.[290]
[Sidenote: The account of Tacitus.]
Tacitus wrote a century and a half after Julius Caesar when the tribes
had become better known the Romans; hence we get from him more detailed
information. From him we learn that both the Sitones--a people of
northern Germany--and the British often bestowed the royal power on
women, a circumstance which aroused the strong contempt of Tacitus, who
was in this respect of a conservative mind.[291] The Romans had, indeed,
good reason to remember with sorrow the valiant Boadicea, queen of the
Britons.[292] Regarding the Germans Tacitus wrote a whole book in which
he idealises that nation as a contrast to the lax morality of civilised
Rome, much as Rousseau in the eighteenth century extolled the virtues of
savages in a state of nature. What Tacitus says in regard to lofty
morals we shall do well to take with a pinch of salt; but we may with
more safety trust his accuracy when he depicts national customs. From
Tacitus we learn that the Germans believed something divine resided in
women[293]; hence their respect for them as prophetesses.[294] One
Velaeda by her soothsaying ruled the tribe of Bructeri completely[295]
and was regarded as a goddess,[296] as were many others.[297] The German
warrior fought his best that he might protect and please his wife.[298]
The standard of conjugal fidelity was strict[299]; men were content with
one wife, although high nobles were sometimes allowed several wives as
an increase to the family prestige.[300] The dowry was brought not by
the wife to the husband, but to the wife by the husband--evidently a
survival of the custom of wife purchase; but the wife was accustomed to
present her husband with arms and the accoutrements of war.[301] She was
reminded that she took her husband for better and worse, to be a
faithful partner in joy and sorrow until death.[302] A woman guilty of
adultery was shorn and her husband drove her naked through the village
with blows.[303]
[Sidenote: The written laws of the barbarians.]
We see, then, that by no means all of these barbarian nations had the
same standards in regard to women. Of written laws there were none as
yet. But contact with the civilisation of Rome had its effect; and when
Goths, Burgundians, Franks, and Lombards had founded new states on the
ruins of the western Roman Empire, the national laws of the Germanic
tribes began to be collected and put into writing at the close of the
fifth century. Between the fifth and the ninth centuries we get the
Visigothic, Burgundian, Salic, Ripuarian, Alemannic, Lombardian,
Bavarian, Frisian, Saxon, and Thuringian law books. They are written in
medieval Latin and are not elaborated on a scientific basis. Three
distinct influences are to be seen in them: (1) native race customs,
ideals, and traditions; (2) Christianity; (3) the Roman civil law, which
was felt more or less in all, but especially in the case of the
Visigoths; as was natural, since this people had been brought into
closest touch with Rome. Inasmuch as the barbarians allowed all peoples
conquered by them to be tried under their own laws, the old Roman civil
law was still potent in all its strength in cases affecting a Roman. Let
us endeavour to glean what we can from the barbarian codes on the matter
of women's rights.
[Sidenote: Guardianship.]
The woman was always to be under guardianship among the Germanic peoples
and could never be independent under any conditions. Perhaps we should
rather call the power (_mundium_) wielded by father, brother, husband,
or other male relative a protectorate; for in those early days among
rude peoples any legal action might involve fighting to prove the merits
of one's case, and the woman would therefore constantly need a champion
to assert her rights in the lists. Thus the woman was under the
perpetual guardianship of a male relative and must do nothing without
his consent, under penalty of losing her property.[304] Her guardian
arranged her marriage for her as he wished, provided only that he chose
a free man for her husband[305]; if the woman, whether virgin or widow,
married without his consent, she lost all power to inherit the goods of
her relatives[306]; and her husband was forced to pay to her kin a
recompense amounting to 600 _solidi_ among the Saxons, 186 among the
Burgundians.[307]
[Sidenote: Marriage.]
The feeling of caste was very strong; a woman must not marry below her
station.[308] By a law of the Visigoths she who tried to marry her own
slave was to be burned alive[309]; if she attempted it with another's
bondman, she merited one hundred lashes.[310] The dowry was a fixed
institution as among the Romans; but the bridegroom regularly paid a
large sum to the father or guardian of the woman. This _wittemon_ was
regarded as the price paid for the parental authority (_mundium_) and
amounted among the Saxons to 300 _solidi_.[311] As a matter of fact this
custom practically amounted to the intended husband giving the dowry to
his future wife. The husband was also allowed to present his wife with a
donation (_morgengabe_) on the morning after the wedding; the amount
was limited by King Liutprand to not more than one fourth of all his
goods.[312] Breaking an engagement after the solemn betrothal had been
entered into was a serious business. The Visigoths refused to allow one
party to break an engagement without the consent of the other; and if a
woman, being already engaged, went over to another man without her
parent's or fiance's leave, both she and the man who took her were
handed over as slaves to the original fiance.[313] The other barbarians
were content to inflict a money fine for breach of promise.[314]
[Sidenote: Power of the husband.]
The woman on marrying passed into the power of her husband "according to
the Sacred Scriptures," and the husband thereupon acquired the lordship
of all her property.[315] The law still protected the wife in some ways.
The Visigoths gave the father the right of demanding and preserving for
his daughter her dowry.[316] The Ripuarians ordained that whatever the
husband had given his wife by written agreement must remain
inviolate.[317] King Liutprand made the presence of two or three of the
woman's male relatives necessary at any sale involving her goods, to see
to it that her consent to the sale had not been forced.[318]
[Sidenote: Divorce.]
On the subject of divorce the regulations of the several peoples are
various; but the commands of the New Testament are alike strongly felt
in all; and we may expect to find divorce limited by severe
restrictions.[319] The Burgundians allowed it only for adultery or grave
crimes, such as violating tombs. If a wife presumed to dismiss her
husband for any other cause, she was put to death (_necetur in luto_);
to a husband who sent his wife a divorce without these specific reasons
existing the law was more indulgent, allowing him to preserve his life
by paying to his injured wife twice the amount that he had originally
given her parents for her, and twelve _solidi_ in addition; and in case
he attempted to prove her guilty of one of the charges mentioned above
and she was adjudged innocent, he forfeited all his goods to her and was
forced to leave his home.[320] The Visigoths were equally strict; the
husband who dismissed his wife on insufficient legal grounds lost all
power over her and must return all her goods; his own must be preserved
for the children; if there were none, the wife acquired his property. A
woman who married a divorced man while his first wife was living, was
condemned for adultery and accordingly handed over to the first wife to
be disposed of as the latter wished; exile, stripes, and slavery were
the lot of a man who took another wife while his first partner was still
alive.[321] The Alemanni and the Bavarians, who were more remote from
Italy and hence from the Church, were influenced more by their own
customs and allowed a pecuniary recompense to take the place of the
harsher enactments.[322]
[Sidenote: Adultery.]
Adultery was not only a legal cause for divorce, but also a grave crime.
All the barbarian peoples are agreed in so regarding it, but their
penalties vary according as they were more or less affected by proximity
to Italy, where the power of the Church was naturally strongest. The
Ripuarians, the Bavarians, and the Alemanni preferred a money fine
ranging from fifty to two hundred _solidi_.[323] Among the Visigoths
the guilty party was usually bound over in servitude to the injured
person to be disposed of as the latter wished.[324] Sometimes the law
was harsher to women than to men; thus, according to a decree of
Liutprand,[325] a husband who told his wife to commit adultery or who
did so himself paid a mulct of fifty _solidi_ to the wife's male
relatives; but if the wife consented to or hid the deed, she was put to
death. The laws all agree that the killing of adulterers taken in the
act could not be regarded as murder.
[Sidenote: The Church indulgent toward kings.]
It is always to be remembered that although the statutes were severe
enough, yet during this period, as indeed throughout all history, they
were defied with impunity. Charlemagne, for example, the most Christian
monarch, had a large number of concubines and divorced a wife who did
not please him; yet his biographer Einhard, pious monk as he was, has no
word of censure for his monarch's irregularities[326]; and policy
prevented the Church from thundering at a king who so valiantly crushed
the heretics, her enemies. Bishop Gregory of Tours tells us without a
hint of being shocked that Clothacharius, King of the Franks, had many
concubines.[327] Concubinage was, in fact, the regular thing.[328] But
neither in that age, nor later in the case of Louis XIV, nor in our own
day in the case of Leopold of Belgium has the Church had a word of
reproach for monarchs who broke with impunity moral laws on which she
claims always to have insisted without compromise.
[Sidenote: Remarriage.]
In accordance with the commands of Scripture neither the divorced man
nor the divorced woman could marry again during the lifetime of the
other party. To do so was to commit adultery, for which the usual
penalties went into effect.
[Sidenote: Property rights and powers.]
A woman's property would consist of any or all of these:
I. Her share of the property of parents or brothers and sisters.
II. Her dowry and whatever nuptial donations (_morgengabe_) her husband
had given her, and whatever she had earned together with her husband.
There could be no account of single women's property or disposal of what
they earned, because in the half-civilised state of things which then
obtained there was no such thing as women engaging in business; indeed,
not even men of any pretension did so; war was their work. The unmarried
woman was content to sit by the fire and spin under the guardianship
and support of a male relative. Often she would enter a convent.
I shall first discuss the laws of inheritance as affecting women, in
order to note what property she was allowed to acquire. In this
connection it is well to bear in mind a difference between Roman and
Germanic law. The former viewed an inheritance as consisting always of a
totality of all goods, whether of money, land, movables, cattle, dress,
or what not. But among the Germanic peoples land, money, ornaments, and
the like were regarded as so many distinct articles of inheritance, to
some of which women might have legal claims of succession, but not
necessarily to all. This is most emphatically shown in the case of land.
Of all the barbarian peoples, the Ripuarians alone allowed women the
right to succeed to land.[329] Among other nations a daughter or sister
or mother, whoever happened to be the nearest heir, would get the money,
slaves, etc., but the nearest _male_ kin would get the land.[330] Only
if male kin were lacking to the fifth degree--an improbable
contingency--did alodial inheritance "pass from the lance to the
spindle."[331] In respect to all other things a daughter was co-heir
with a son to the estate of a father or mother. According to the Salic
and Ripuarian law this would be one order of succession[332]:
I. Children of the deceased.
II. These failing, surviving mother or father
of deceased.
III. These failing, brother or sister of deceased.
IV. These failing, sister of mother of deceased.
V. These failing, sister of father of deceased.
VI. These failing, male relatives on father's side.
It will be observed that in such a succession these laws are more
partial to women relatives than the Roman law; an aunt, for example, is
called before an uncle. An uncle would certainly exclude an aunt under
the Roman law; but most of the Germanic codes allowed them an equal
succession.[333] Nevertheless, when women did inherit under the former,
they acquired the land also. Moreover, the woman among the Germanic
nations must always be under guardianship; and whereas under the Empire
the power of the guardian was in practice reduced to nullity, as I have
shown, among the barbarians it was extremely powerful, because to assert
one's rights often involved fighting in the lists to determine the
judgment of God. It was a settled conviction among the Germanic peoples
that God would give the victory to the rightful claimant. As women could
not fight, a champion or guardian was a necessity. This was not true in
Roman courts, which preferred to settle litigation by juristic reasoning
and believed, like Napoleon, that God, when appealed to in a fight, was
generally on the side of the party who had the better artillery.
Children inherited not only the estate but also the friendships and
enmities of their fathers, which it was their duty to take up.
Hereditary feuds were a usual thing.[334] King Liutprand ordaine[335]
however, that if a daughter alone survived, the feud was to be brought
to an end and an agreement effected.
Some of the nations seem to have provided that children must not be
disinherited except for very strong reasons; for example, the law of the
Visigoths[336] forbids more than one third of their estate being
alienated by mother or father, grandmother or grandfather. The Alemanni
permitted a free man to leave all his property to the Church and his
heirs had no redress[337]; but the Bavarians compelled him before
entering monastic life to distribute among his children their
proportionate parts.[338]
[Sidenote: Property of the married woman.]
We may pass now to the property rights of the married woman. The
relation of her husband to the dowry I have already explained. The dowry
was conceived as being ultimately for the children; only when there were
no children, grandchildren, or great-grandchildren did the woman have
licence to dispose of the dowry as she wished: this was the law among
the Visigoths.[339] The dowry, then, was to revert to the children or
grandchildren at the death of the wife; if there were none such, to the
parents or relatives who had given her in marriage; these failing, it
escheated to the Crown--so according to Rotharis.[340] By the laws of
the Visigoths[341] when the wife died, her husband continued in charge
of the property; but, as under the Roman law, he had to preserve it
entire for the children, though he might enjoy the usufruct. When a son
or daughter married, their father must at once give them their share of
their mother's goods, although he could still receive the income of one
third of the portion. If son or daughter did not marry, they received
one half their share on becoming twenty years of age; their father might
claim the interest of the other half while he lived; but at his death he
must leave it to them. When a woman left no children, her father or
nearest male kin usually demanded the dowry back.[342]
When the husband died, his estate did not go to wife, but to his
children or other relatives.[343] If however, any property had been
earned by the joint labour of husband and wife, the latter had a right
to one half among the Westfalians; to one third among the Ripuarians; to
nothing among the Ostfalians.[344] Children remained in the power of
their mother if she so desired and provided she remained a widow. A
mother usually had the enjoyment of her dowry until her death, when she
must leave it to her children or to the donor or nearest relative.[345]
If the husband died without issue, some nations allowed the wife a
certain succession to her husband's goods, provided that she did not
marry again. Thus, the Burgundians gave her under such conditions one
third of her husband's estate to be left to his heirs, however, at her
death.[346] The Bavarians, too, under the same conditions allowed her
one half of her husband's goods[347] and even if there was issue,
granted her the right to the interest of as much as one child
received.[348]
A widow who married again lost the privilege of guardianship over her
children, who thereupon passed to a male relative of the first husband.
As to the dowry of the prior union the woman must make it over at once
to her children according to some laws or, according to others, might
receive the usufruct during life and leave it to the children of the
first marriage at her death. Any right to the property of her first
husband she of course lost.[349] When there was no issue of the first
marriage then the dowry and nuptial donations could usually follow her
to a second union.
[Sidenote: Criminal law pertaining to women.]
Criminal law among these half civilised nations could not but be a crude
affair. Their civilisation was in a state of flux, and immediate
practical convenience was the only guide. They were content to fix the
penalties for such outrages as murder, rape, insult, assault, and the
like in money; the Visigoths alone were more stringent in a case of
rape, adding 200 lashes and slavery to the ravisher of a free woman who
had accomplished his purpose.[350] Some enactments which may well strike
us as peculiar deserve notice. For example, among the Saxons the theft
of a horse or an ox or anything worth three _solidi_ merited death; but
murder was atoned for by pecuniary damages.[351] Among the Burgundians,
if a man stole horses or cattle and his wife did not at once disclose
the deed, she and her children who were over fourteen were bound over in
slavery to the outraged party "because it hath often been ascertained,
that these women are the confederates of their husbands in crime."[352]
The most minute regulations prevailed on the subject of injury to women.
Under the Salic law[353] for instance, if a free man struck a free women
on the fingers or hand, he had to pay fifteen _solidi_; if he struck her
arm, thirty _solidi_; if above her elbow, thirty-five _solidi_; if he
hit her breast, forty-five _solidi_. The penalties for murdering a free
woman were also elaborated on the basis of her value to the state as a
bearer of children. By the same Salic law[354] injury to a pregnant
woman resulting in her death merited a fine of seven hundred _solidi_;
but two hundred was deemed sufficient for murder of one after her time
for bearing children had passed. Similarly, for killing a free woman
after she had begun to have children the transgressor paid six hundred
_solidi_; but for murdering an unmarried freeborn girl only two hundred.
The murder of a free woman was punished usually by a fine (_wergeld_)
equal to twice the amount demanded for a free man "because," as the law
of the Bavarians has it,[355] "a woman can not defend herself with arms.
But if, in the boldness of her heart (per audaciam cordis sui), she
shall have resisted and fought like a man, there shall not be a double
penalty, but only the recompense usual for a man [160 _solidi_]." Fines
were not paid to the state, but to the injuried parties or, if these did
not survive, to the nearest kin. If the fine could not be paid, then
might death be meted to the guilty.[356]
Another peculiar feature of the Germanic law was the appeal to God to
decide a moot point by various ordeals. For example, by the laws of the
Angles and Werini, if a woman was accused of murdering her husband, she
would ask a male relative to assert her innocence by a solemn oath[357]
or, if necessary, by fighting for her as her champion in the lists. God
was supposed to give the victory to the champion who defended an
innocent party. If she could find no champion, she was permitted to
walk barefoot over nine red-hot ploughshares[358]; and if she was
innocent, God would not, of course, allow her to suffer any injury in
the act.
[Sidenote: Women in slavery.]
Perhaps a word on the status of women in slavery among the Germanic
nations will not be out of place. The new nations looked upon a slave as
a chattel, much as the Romans did. If a wrong was done a slave woman,
her master received a recompense from the aggressor, but she did not,
for to hold property was denied her. But we may well believe that the
great value which the Church put on chastity and conjugal fidelity
rendered the slave woman less exposed to the brutal passions of her lord
than had been the case under the Empire. Thus, by a law of King
Liutprand, a master who committed adultery with the wife of a slave was
compelled to free both[359]; and the Visigot[360] inflicted fifty
lashes and a fine of twenty _solidi_ upon the man who used violence to
another man's slave woman.
On comparing the position of women under Roman law and under the
Germanic nations, as we have observed them thus far, we should note
first of all that under the latter women benefited chiefly by the
insistence of the Church on the value of chastity in both sexes. That
in those days the passions of men were difficult to restrain in practice
does not invalidate the real service done the world by the ideal that
was insisted upon,[361] an ideal which was certainly not held in pagan
antiquity except by a few great minds. Although the social position of
woman was thus improved, the character of the age and the sentiments of
the Bible which I have already quoted made her status far inferior to
her condition under Roman law so far as her legal rights were concerned.
In a period[362] when the assertion of one's rights constantly demanded
fighting, the woman was forced to rely on the male to champion her; the
Church, in accordance with the dicta of the Apostles, encouraged and
indeed commanded her to confine herself to the duties of the household,
to leave legal matters to men, and to be guided by their advice; and
thus she was prevented from asserting herself out of regard for the
strong public opinion on the subject, which was quite alien to the
sentiments of the old Roman law. Henceforward also we are to have law
based on old customs and _theology_,[363] not on practical convenience
or scientific reasoning.
SOURCES
I. Corpus Iuris Germanici Antiqui: edidit Ferd. Walter.
Berolini--impensis G. Reimeri, 1824. 3 vols.
II. C. Iulii Caesaris Commentarii de Bello Gallico: recognovit Geo.
Long. Novi Eboraci apud Harperos Fratres. 1883
III. Cornelii Taciti libri qui supersunt: quartum recognovit Carolus
Halm. Lipsiae (Teubner), 1901.
IV. Sancti Georgii Florentii Gregorii, Episcopi Turonensis, Historiae
Ecclesiasticae Francorum libri decem: edidit J. Guadet et N.R. Taranne.
Parisiis, apud Julium Renouard et Socios, 1838.
V. Iordanis de Origine Actibusque Getorum: edidit Alfred Holder.
Freiburg und Tubingen; Verlagsbuchhandlung von J. C.B. Mohr.
VI. Widukindi Rerum Gestarum Saxonicarum libri tres. Accedit libellus de
Origine Gentis Suevorum. Editio quarta: post Georgium Waitz recognovit
Karolus A. Kehr. Hannoverae et Lipsiae Impensis Bibliopolii Hahniani,
1904.
VII. Procopii Caesariensis opera omnia: recognovit Jacobus Haury.
Lipsiae. (Teubner). 1905.
VIII. Einhardi Vita Karoli Magni. Editio quinta. Post G.H. Perte
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NOTES:
[288] _de Bell. Gall_., vi, 19.
[289] Id., i, 50.
[290] Id., v, 14.
[291] _Agricola_, 16. _Germania_, 45: Suionibus Sitonum gentes
continuantur. Cetera similes, uno differunt, quod femina dominatur; in
tantum non modo a libertate, sed etiam a servitute degenerant. No woman
ever reigned alone as queen of the Roman Empire until 450 A.D., when
Pulcheria, sister of Theodosius II, ascended the throne of the East; but
she soon took the senator Marcian in marriage and made him king.
[292] _Agricola_, 16.
[293] _Germania_, 8.
[294] Procopius, _de bello Vandalico_, ii, 8, observes the same thing
among the Maurousians, or Moors, in northern Africa: [Greek: andra gar
manteuesthai en to ethnei touto ou themis, alla gunaikes sphisi katochoi
hek de tinos lerourgias ginomenai prolegousi ta esomena, ton palai
chresterion oudenos esson.]
[295] Tacitus, _Hist_., iv, 61, and v, 24.
[296] Id., _Germania_, 8.
[297] Ibid., 8.
[298] Ibid., 7.
[299] Ibid., 17.
[300] Ibid.
[301] Ibid., 18.
[302] Ibid., 18 and 19.
[303] Ibid., 19.
[304] Liutprand, i, 5: Si filiae aut sorores contra voluntatem patris
aut fratris egerint, potestatem habet pater aut frater iudicandi res
suas quomodo aut qualiter voluerit.
[305] Leges Liutprandi, vi, 119: si quis filiam suam aut sororem alii
sponsare voluerit, habeat potestatem dandi cui voluerit, libero tamen
homini. Lex Wisigothorum, iii, 1, 7 and 8.
[306] Leges Liutprandi, vi, 119. Lex Angliorum et Werinorum, x, 2: si
libera femina sine voluntate patris aut tutoris cuilibet nupserit,
perdat omnem substantiam quam habuit vel habere debuit. Reply of a
bishop quoted by Gregory of Tours, 9, 33: quia sine consilio parentum
eam coniugio copulasti, non erit uxor tua. But the law of the Visigoths
(iii, i, 8, and 2,8) merely deprived her of succession to the estate of
her parents.
[307] Lex Saxonum, vi, 2: Si autem sine voluntate parentum, puella tamen
consentiente, ducta fuerit (uxorem ducturus) bis ccc solidos parentibus
eius componat. Lex Burgundionum: _Add_., 14. cf. Edictum Rotharis, 188:
si puella libera aut vidua sine voluntate parentum ad maritum
ambulaverit, liberum tamen, tunc maritus, qui eam acceperit uxorem,
componat pro anagrip solidos XX et propter faidam alios XX.
[308] By a law of the Alemanni (_Tit_., 57), if two sisters were
heiresses to a father's estate and one married a vassal (_colonus_) of
the King or Church and the other became the wife of a free man equal to
her in rank, the latter only was allowed to hold her father's land,
although the rest of the goods were divided equally.
[309] Lex Wisigothorum, iii, 2, 2.
[310] Ibid., iii, 2, 3.
[311] Lex Saxonum, vi, I: uxorem ducturus CCC solidos det parentibus
eius. See also the lex Burgundionum, 66, I and 2 and 3. In the case of a
widow who married again the gift of the husband was called _reiphe_ or
_reippus_ and very solemn ceremonies belonged to the giving of it
according to the Salic law, _Tit_., 47: si, ut fieri adsolet, homo
moriens viduam dimiserit et cam quis in coniugium voluerit accipere,
antequam eam accipiat Tunginus aut Centenarius Mallum indicent, et in
ipso Mallo scutum habere debet, et tres homines vel caussas mandare. Et
tunc ille, qui viduam accipere vult, cum tribus testibus qui adprobare
debent, tres solidos aeque pensantes, et denarium habere debet, etc.
[312] Leges Liutprandi, ii, 1.
[313] Lex Wisigothorum, iii, 1, 2 and 3, and iii, 6, 3.
[314] E.g., 62 _solidi_ by the Salic law, _Tit_., 70. See also Lex
Baiuvariorum, _Tit_., vii, 15 and 16 and 17. Lex Alemannorum, 52, i; 53;
54.
[315] Lex Burgundionum, _Add. primum_, xiii: quaecumque mulier Burgundia
vel Romana voluntate sua ad maritum ambulaverit, iubemus ut maritus ipse
de facultate ipsius mulieris, sicut in eam habet potestatem, ita et de
rebus suis habeat.
Lex Wisigothorum, iv, 2, 15: Vir qui uxorem suam secundum sacram
scripturam habet in potestate, similiter et in servis suis potestatem
habebit, et omnia quae cum servis uxoris suae vel suis in expeditione
acquisivit, in sua potestate permaneant.
[316] Lex Wisigothorum, iii, Tit. i, 6.
[317] Lex Ripuariorum, 37, 1.
[318] Leges Liutprandi, iv, 4.
[319] That is, for the common people. Kings have always had a little way
of doing as they pleased. See the anecdote of King Cusupald in Paulus'
_Hist. Langobard_, i, 21: secunda autem (sc. filia Wacchonis) dicta est
Walderada, quae sociata est Cusupald, alio regi Francorum, quam ipse
odio habens uni ex suis, qui dicebatur Garipald, in coniugium tradidit.
[320] For all this see Lex Burgundionum, 34, 1-4.
[321] For all these, see Lex Wisigothorum, iii, 6, 1 and 2.
[322] Capitula Addita ad Legem Alemannorum, 30. Lex Baiuvariorum, vii,
14.
[323] Lex Ripuariorum, _Tit_., 35. Lex Baiuvariorum, vii. Lex
Alemannorum, 51, 1.
[324] Lex Wisigothorum, iii, 6, 1 and 2, and iii, 4, 1.
[325] Leges Liutprandi, vi, 130.
[326] Einhard, _Vita Kar. Mag_., 17: Deinde cum matris hortatu filiam
Desiderii regis Langobardorum duxisset uxorem, incertum qua de causa,
post annum eam repudiavit et Hildigardam de gente Suaborum praecipuae
nobilitatis feminam in matrimonium duxit ... Habuit et alias tres filias
... duas de Fastrada uxore ... tertiam de concubina quadam ... defuncta
Fastrada ... tres habuit concubinas.
[327] Gregory of Tours, 4, 3.
[328] The concubines of Theodoric--Jordanes, _de orig. acti busque
Get._, 58. Huga, king of the Franks, had a filium quem ex concubina
genuit--Widukind, _Res Gest. Sax._, i, 9.
[329] Lex Ripuariorum, _Til_., 48. Lex Angliorum et Werinorum, vi--_de
alodibus_, 1: hereditatem defuncti filius, non filia suscipiat. Salic
Law, _Tit_., 62: _de alodis_, 6: de terra vero Salica in mulierem nulla
portio hereditatis transit, sed hoc virilis sexus adquirat, hoc est,
filii in ipsa hereditate succedunt. Lex Saxonum, vii, 1: Pater aut mater
defuncti filio, non filiae hereditatem relinquit.
[330] Cf. Lex Angliorum et Werinorum, vi: _de alodibus_.
[331] Ibid., vi, 8: post quintam autem (sc. generationem) filia ex toto,
sive de patris sive de matris parte, in hereditatem succedat, et tunc
demum hereditas ad fusum a lancea transeat.
[332] Lex Salica, _Tit._, 62. Lex Ripuariorum, _Tit._, 56.
[333] Cf. Lex Wisigothorum, iv, 2, 7 and 9.
[334] Tacitus, _Germania_, 21.
[335] Legis Liutprandi, ii, 7.
[336] Lex Wisigothorum, iv, 5, I.
[337] Lex Alemannorum, _Tit._, i.
[338] Lex Baiuvariorum, _Tit._, i.
[339] Lex Wisigothorum, iv, 2, 20.
[340] Edictum Rotharis, i, 121.
[341] Lex Wisigothorum, iv, 2, 13.
[342] Cf. Capitula addita ad legem Alemannorum, 29. Lex Saxonum, viii,
2.
[343] Cf. lex Wisigothorum, iv, 2, 11: maritus et uxor tunc sibi
hereditario iure succedant, quando mulla affinitas usque ad septimum
gradum de propinquis eorum vel parentibus inveniri poterit. See also Lex
Burgundionum, 14, 1.
[344] Lex Saxonum, ix. Lex Ripuariorum, 37, 2.
[345] Lex Saxonum, viii. Lex Wisigothorum, iv, 3, 3. Lex Burgundionum
85, 1, and 62, 1.
[346] Lex Burgundionum, 42, 1; 62, 1; 74, 1.
[347] Lex Baiuvariorum, xiv, 9, 1.
[348] Ibid., xiv, 6.
[349] For all this, see Lex Burgundionum, 24 and 62 and 74. Lex
Wisigothorum, iv, Tit. 3. Lex Baiuvariorum, 14. Lex Alemannorum, 55 and
56.
[350] Lex Wisigothorum, iii, 3, 1.
[351] Lex Saxonum, iv. In the early days when the Great West of the
United States was just being opened up and when society there was in a
very crude state, a horse thief was regularly hanged; but murder was
hardly a fault.
[352] Lex Burgundionum, 47, 1 and 2. The guilty man was put to death.
[353] Lex Salica, _Tit._, 23.
[354] Id, _Tit._, 28.
[355] Lex Baiuvariorum, _Tit._, xiii, 2.
[356] Cf. lex Salica, _Tit._, 61--a very curious account of formalities
to be observed in such a case.
[357] It was deemed sufficient for a male relative, say, the father, to
assert the innocence of the woman under solemn oath: for it was thought
that he would be unwilling to do this if he knew the woman was guilty
and so incur eternal Hell-fire as a punishment for perjury. An example
of this solemn ceremony is told interestingly by Gregory of Tours, 5,
33. A woman at Paris was charged by her husband's relatives with
adultery and was demanded to be put to death. Her father took a solemn
oath that she was innocent. Far from being content with this, the
husband's kin began a fight and the matter ended in a wholesale butchery
at the church of St. Dionysius.
[358] Lex Angliorum et Werinorum, xiv: aut si campionem non habuerit,
ipsa ad novem vomeres ignitos examinanda mittatur.
[359] Leges Liutprandi, vi, 140.
[360] Lex Wisigothorum, iii, 4, 16.
[361] See the interesting story of the girl who slew Duke Amalo, as
narrated by Gregory of Tours, 9, 27.
[362] The bloody nature of the times is depicted naively by Gregory,
Bishop of Tours, who wrote the history of the Franks. See, e.g., the
stories of Ingeltrudis, Rigunthis, Waddo, Amalo, etc., in Book 9.
Gregory was born in 539.
[363] _Corpus Iuris Canonici_ (Friedberg), vol. i, p. 1, _Distinctio
Prima_: ius naturae est quod in lege et _evangelio_ continetur.
CHAPTER V
DIGRESSION OF THE LATER HISTORY OF ROMAN LAW
With Charlemagne, who was crowned Emperor by the Pope in the year 800,
began the definite union of Church and State and the Church's temporal
power. Henceforth for seven centuries, until the Reformation, we shall
have to reckon with canon law as a supreme force in determining the
question of the position of women. A brief survey of the later history
of the old Roman Law will not be out of place in order to note what
influence, if any, it continued to exert down the ages.
The body of the Roman law, compiled by order of Justinian (527-565
A.D.), was intended primarily for the eastern empire; but when, in the
year 535, the Emperor conquered the western Goths, who then ruled Italy,
he ordered his laws taught in the school of jurisprudence at Rome and
practiced in the courts. I have already remarked that the barbarians who
overran Italy allowed the vanquished the right to be judged in most
cases by their own code. But the splendid fabric of the Roman law was
too elaborate a system to win the attentive study of a rude people; the
Church had its own canons, the people their own ancestral customs; and
until the twelfth century no development of the Roman Civil Code took
place. Finally, during the twelfth century, the great school at Bologna
renewed the study with vigour, and Italy at the present day derives the
basic principles of its civil law from the Corpus of Justinian.
Practically the same story holds true of France,[364] of Spain, and of
the Netherlands, all of whom have been influenced particularly by the
great jurists of the sixteenth century who were simply carrying further
the torch that had been lit so enthusiastically at Bologna in the
twelfth century.
As to Germany,[365] when that unhappy country had been separated from
France and Italy after the Treaty of Verdun in 843, Carlovingian law and
the ancient German law books fell into disuse. The law again rested on
unwritten customs, on the decisions of the judges and their assessors,
and on agreements of the interested parties (feudal services and
tenures). Not till the twelfth and thirteenth centuries was any record
made of the rules of law which had arisen; many laws of cities on
various matters and in various provinces were recorded by public
authority; and thus originated the so-called law books of the Middle
Ages, the private labours of experienced men, who set forth the legal
principles which were recognised in all Germany, or at least in certain
parts of it. There were no law schools as yet, and scientific
compilation of German law was not even thought of. After the University
of Bologna had revived the study of Roman law in Italy, the Italian
universities attracted the German youth, who on their return would
labour to introduce what they had learned. Their efforts were seconded
by the clergy, through the close connection with canon law which was in
force in Germany. German emperors and territorial lords also favoured
Roman law because they saw how well suited it was to absolutism; they
liked to engage jurists trained in Italy, especially if they were
doctors of both canon and Roman law. Nor did the German people object.
From the fourteenth century many schools of jurisprudence were
established on Italian models.
At present, the law of Justinian has only such force as is received by
usage or as it has acquired by recognition. I. The Roman law forms in
Germany the principal law in some branches, that is, it is in so far its
basis that the German law is only an addition or modification of it. In
other branches it is only supplementary, that is, it is merely
subsidiary to the German law. II. Only the glossed parts and passages of
Justinian's law collection have binding force in Germany.
III. Only those glossed passages are binding which contain the latest
rule of law. Consequently the historical materials contained in them,
though always of great importance for discovering the latest law, have
not binding force. IV. Those precepts of the Roman law which relate to
Roman manners and institutions unknown in Germany are inapplicable here,
though glossed. V. The Roman law has but slight application to such
objects and transactions as were unknown to the Romans and are of purely
Germanic origin. VI. With the limitations above enumerated the Roman law
has been adopted as a whole and not in detached parts.
In England Roman law has had practically no effect. In the year 1149 a
Lombard jurist, Vacarius, lectured on it at Oxford; but there were no
results. Canon law is, of course, a force to be reckoned with in Britain
as on the Continent.
Before we enter the question of women's rights during the Middle Ages,
we must take a general survey of the character of that period; for
obviously we cannot understand its legislation without some idea of the
background of social, political, and intellectual life. In the first
place, then, the Church was everywhere triumphant and its ideals
governed legislation completely on such matters as marriage. The civil
law of Rome, as drawn up first by the epitomisers and later studied more
carefully at Bologna, served to indicate general principles in cases to
which canon law did not apply; but there was little jurisdiction in
which the powers ecclesiastical could not contrive to take a hand. At
the same time Germanic ideals and customs continued a powerful force.
For a long time after the partition of the vast empire of Charlemagne
government was in a state of chaos and transition from which eventually
the various distinct states arose. A struggle between kings and nobles
for supremacy dragged along for many generations; and as during that
contest each feudal lord was master in his own domain, there was no
consistent code of laws for all countries or, indeed, for the same
country. Yet the character of the age determined in a general way the
spirit that dictated all laws. Society rested on a military and
aristocratic basis, and when the ability to wield arms is essential to
maintain one's rights, the position of women will be affected by that
fact. Beginning with the twelfth century city life began to exert a
political influence; and this, again, did not fail to have an effect on
the status of women. Of any participation of women in intellectual life
there could be no question until the Renaissance, although we do meet
here and there with isolated exceptions, a few ladies of high degree
like Roswitha of Gandersheim and Hadwig, Duchess of Swabia, niece of
Otto the Great, and Heloise. The learning was exclusively scholastic,
and from any share in that women were barred. When people are kept in
ignorance, there is less inducement for them to believe that they have
any rights or to assert them if they do think so.
We shall do well to bear in mind, in noting the laws relative to women,
that theory is one thing and practice quite another. Hence, although the
doctrines of the Church on various matters touching the female sex were
characterised by the greatest purity, we shall see that in practice they
were not strictly executed. Religion does in fact play a less
considerable part in regulating the daily acts of men than theologians
are inclined to believe. If anything proves this, it is the history of
that foulest stain on Christian nations--prostitution. We might expect
that since the Roman Catholic Church insists so on chastity the level of
this virtue would certainly be higher in countries which are almost
exclusively Catholic, like Spain and Italy, than in Protestant lands;
but no one who has ever travelled in Spain or Italy fails to recognise
that the conduct of men is as lamentably low in these as in England,
Germany, or the United States.
With this brief introduction I shall proceed next to explain the
position of women under the canon law, a code which affected all
countries of Europe equally until the Reformation; and in connection
with this I shall give some idea of the attitude of the Roman Catholic
Church towards women and women's rights at the present day.
NOTES:
[364] French customary law began to be written in the thirteenth century
and was greatly affected by the Roman law.
[365] The succeeding paragraphs are a summary of the account by the
learned Professor Mackeldey, who has investigated Roman law with the
most minute diligence.
CHAPTER VI
THE CANON LAW AND THE ATTITUDE OF THE ROMAN CATHOLIC CHURCH
[Sidenote: The canon law reaffirms the subjection of women.]
The canon law reaffirms woman's subjection to man in no uncertain terms.
The wife must be submissive and obedient to her husband.[366] She must
never, under penalty of excommunication, cut off her hair, because "God
has given it to her as a veil and as a sign of her subjection."[367] A
woman who assumed men's garments was accursed[368]; it will be
remembered that the breaking of this law was one of the charges which
brought Joan of Arc to the stake. However learned and holy, woman must
never presume to teach men publicly.[369] She was not allowed to bring a
criminal action except in cases of high treason or to avenge the death
of near relatives.[370] Parents could dedicate a daughter to God while
she was yet an infant; and this parental vow bound her to the nunnery
when she was mature, whether she was willing or not.[371] Virgins or
widows who had once consecrated themselves to God might not marry under
pain of excommunication.[372] Parents could not prevent a daughter from
taking vows, if she so wished, after she had attained the age of
twelve.[373]
[Sidenote: Woman and marriage under canon law.]
The most important effect of the canon law was on marriage, which was
now a sacrament and had its sanction not in the laws of men, but in the
express decrees of God. Hence even engagements acquired a sacred
character unknown to the Roman law; and when a betrothal had once been
entered into, it could be broken only in case one or both of the
contracting parties desired to enter a monastery.[374] Free consent of
both man and woman was necessary for matrimony.[375] There must also be
a dowry and a public ceremony.[376] The legitimate wife is thus
defined[377]: "A chaste virgin, betrothed in chastity, dowered according
to law, given to her betrothed by her parents, and received from the
hands of the bridesmaids (_a paranimphis accipienda_); she is to be
taken according to the laws and the Gospel and the marriage ceremony
must be public; all the days of her life--unless by consent for brief
periods to devote to worship--she is never to be separated from her
husband; for the cause of adultery she is to be dismissed, but while she
lives her husband may marry no other." The blessing of the priest was
necessary. About every form connected with the marriage service the
Church threw its halo of mystery and symbol to emphasise the sacred
character of the union. Thus[378]: "Women are veiled during the marriage
ceremony for this reason, that they may know they are lowly and in
subjection to their husbands.... A ring is given by the bridegroom to
his betrothed either as a sign of mutual love or rather that their
hearts may be bound together by this pledge. For this reason, too, the
ring is worn on the fourth finger, because there is a certain vein in
that finger which they say reaches to the heart."
[Sidenote: Clandestine marriages.]
Clandestine marriages were forbidden,[379] but the Church always
presumed everything it could in favour of marriage and its
indissolubility. Thus, Gratian remarks[380]: "Clandestine marriages are,
to be sure, contrary to law; nevertheless, they can not be dissolved."
The reason for forbidding them was perfectly reasonable: one party might
change his or her mind and there would be no positive proof that a
marriage had taken place, so that a grave injury might be inflicted on
an innocent partner by an unscrupulous one who desired to dissolve the
union.[381] Yet the marriage by consent alone without any of the
ceremonies or the blessing of the priest was perfectly valid, though not
"according to law" (_legitimum_), and could not be dissolved.[382] Not
until the great Council of Trent in 1563 was this changed. At that time
all marriages were declared invalid unless they had been contracted in
the presence of a priest and two or three witnesses.[383]
[Sidenote: Protection to women.]
The Church is seen in its fairest light in its provisions to protect the
wife from sexual brutality on the part of her husband, and it deserves
high praise for its stand on such matters.[384] Various other laws show
the same regard for the interests of women. A man who was entering
priestly office could not cast off his wife and leave her destitute, but
must provide living and raiment for her.[385] Neither husband nor wife
could embrace the celibate life nor devote themselves to continence
without the consent of the other.[386] A man who cohabited with a woman
as his concubine, even though she was of servile condition or
questionable character, could not dismiss her and marry another saving
for adultery.[387] Slaves were now allowed to contract marriages and
masters were not permitted to dissolve them.[388]
[Sidenote: Divorce.]
It has always been and still is the boast of the Roman Catholic Church
that it has been the supreme protector of women on account of its stand
on divorce. Says Cardinal Gibbons[389]: "Christian wives and mothers,
what gratitude you owe to the Catholic Church for the honorable position
you now hold in society! If you are no longer regarded as the slave, but
the equal, of your husbands; if you are no longer the toy of his
caprice, and liable to be discarded at any moment; but if you are
recognised as the mistress and queen of your household, you owe your
emancipation to the Church. You are especially indebted for your liberty
to the Popes who rose up in all the majesty of their spiritual power to
vindicate the rights of injured wives against the lustful tyranny of
their husbands." In view of such a claim I may be justified in entering
a somewhat more detailed account of this subject.
On the subject of divorce the Roman Catholic Church took the decided
position which it continues to maintain at the present day. Marriage
when entered upon under all the conditions demanded by the Church for a
valid union is indissoluble.[390] A separation "from bed and board"
(_quoad thorum seu quoad cohabitationem_) is allowed for various causes,
such as excessive cruelty, for a determinate or an indeterminate period;
but there is no absolute divorce even for adultery. For this cause a
separation may, indeed, take place, but the bond of matrimony is not
dissolved thereby and neither the innocent nor the guilty party may
marry again during the lifetime of the other partner.
All this seems very rigorous. It is true that the Roman Catholic Church
does not permit "divorce." But it allows fourteen cases where a marriage
can be declared absolutely null and void, as if it had never existed;
and in these cases the man or woman may marry again. To say that the
Roman Church does not allow divorce is, therefore, playing upon words.
The instruments used to render its strict theory ineffective are
"diriment impediments" and "dispensations."
By the doctrine of "diriment impediments" the Pope or a duly constituted
representative can declare that a marriage has been null and void from
the very beginning because of some impediment defined in the canon law.
Canon IV of the twenty-fourth session of the Council of Trent
anathematises anyone who shall say that the Church cannot constitute
impediments dissolving marriage, or that she has erred in constituting
them. The impediments which can annul marriage are described in the
official Catholic Encyclopedia, vol. vii, pages 697-698. Among them are
impuberty and impotency. Then there is "disparity of worship," which
renders void the marriage of a Christian--that is, a Roman Catholic,
with an infidel,--that is, one who is unbaptised. Marriage of a Roman
Catholic with a baptised non-Catholic constitutes a "relative"
impediment and needs a special dispensation and provisoes, such as a
guarantee to bring up the children in the Roman faith to give it
validity. Another impediment is based on the presumption of want of
consent, "the nullity being caused by a defect of consent." "This
defect," says the Catholic Encyclopedia, "may arise from the intellect
or the will; hence we have two classes. Arising from the intellect we
have: insanity; and total ignorance, even if in confuso of what marriage
is (this ignorance, however, is not presumed to exist after the age of
puberty has been reached); and lastly error, where the consent is not
given to what was not intended. Arising from the will, a defect of
consent may be caused through deceit or dissimulation, when one
expresses exteriorly a consent that does not really exist; or from
constraint imposed by an unjust external force, which causes the consent
not to be free." Consanguinity and affinity are diriment impediments.
Consanguinity "prohibits all marriages in the direct ascending or
descending line in infinitum, and in the collateral line to the fourth
degree or fourth generation." Affinity "establishes a bond of
relationship between each of the married parties and the blood relations
of the other, and forbids marriage between them to the fourth degree.
Such is the case when the marriage springs from conjugal relations; but
as canon law considers affinity to spring also from illicit intercourse,
there is an illicit affinity which annuls marriage to the second degree
only." Then there is "spiritual relationship"; for example, the marriage
of one who stood as sponsor in confirmation with a parent of the child
is null and void.
Under the canon law, even more resources are open for the man who is
tired of his wife; by the doctrine, namely, of "spiritual fornication."
Adultery is, of course, recognised as the cause that admits a
separation. But the canon law remarks that idolatry and all harmful
superstition--by which is meant any doctrine that does not agree with
that of the Church--is fornication; that avarice is also idolatry and
hence fornication; that in fact no vice can be separated from idolatry
and hence all vices can be classed as fornication; so that if a husband
only tried a little bit, he could without much trouble find some "vice"
in his wife that would entitle him to a separation.[391]
When all these fail, recourse can be had to a dispensation. The Church
reserves the right to give dispensations for all impediments. Canon III
of the twenty-fourth session of Trent says: "If anyone shall say, that
only those degrees of consanguinity and affinity which are set down in
_Leviticus_ [xviii, 6 ff.] can hinder matrimony from being contracted,
and dissolve it when contracted; and that the Church can not dispense in
some of those degrees, or ordain that others may hinder and dissolve it;
let him be anathema."
[Sidenote: Inheritance]
The minute and far-fetched subtleties which the Roman Church has
employed in the interpretation of these relationships make escape from
the marital tie feasible for the man who is eager to disencumber himself
of his life's partner. The man of limited means will have a hard time of
it. The great and wealthy have been able at all periods, by working one
or more of these doctrines, to reduce the theory of the Roman Church to
nullity in practice. Napoleon had his marriage to Josephine annulled on
the ground that he had never intended to enter into a religious marriage
with her, although the day before the ceremony he had had the union
secretly blessed by Cardinal Fesch. On the basis of this avowed lack of
intent, his marriage with Josephine was declared null and void, and he
was free to marry Louisa. A plea along the same lines is being worked by
the Count de Castellane now. Louis XII, having fallen in love with Anne
of Brittany, suddenly discovered that his wife was his fourth cousin,
that she was deformed, and that her father had been his godfather; and
for this the Pope gave him a dispensation and his legitimate wife was
sent away. The Pope did not thunder against Louis XIV for committing
adultery with women like Louise de la Valliere and Madame de Montespan.
It is certainly true that in the case of Philip Augustus of France and
Henry VIII of England the Pope did protect injured wives; but both these
monarchs were questioning the Vatican's autocracy. The matrimonial
relations of John of England, Philip's contemporary, were more corrupt
than those of the French king; but, while the Pope chastised John for
his defiance of his political autonomy, he did not excommunicate him on
any ground of morality. The statement of Cardinal Gibbons is not
entirely in accordance with history; he does not take all facts into
consideration, as is also true of his complacent assumption that outside
of the Roman Church no economic forces and no individuals have had any
effect in elevating the moral and economic status of women.
Questions such as those of inheritance belong properly to civil law;
but the canon law claimed to be heard in any case into which any
spiritual interest could be foisted. Thus in the year 1199 Innocent III
enacted that children of heretics be deprived of all their offending
parents' goods "since in many cases even according to divine decree
children are punished in this world on account of their parents."[392]
[Sidenote: General attitude towards women at the present day]
The attitude of the Roman Catholic Church towards women's rights at the
present day is practically the same as it has been for eighteen
centuries. It still insists on the subjection of the woman to the man,
and it is bitterly hostile to woman suffrage. This position is so well
illustrated by an article of the Rev. David Barry in the Roman Catholic
paper, the Dublin _Irish Ecclesiastical Review_, that I cannot do better
than quote some of it. "It seems plain enough," he says, "that allowing
women the right of suffrage is incompatible with the high Catholic ideal
of the unity of domestic life. Even those who do not hold the high and
rigid ideal of the unity of the family that the Catholic Church clings
to must recognise some authority in the family, as in every other
society. Is this authority the conjoint privilege of husband and wife?
If so, which of them is to yield, if a difference of opinion arises?
Surely the most uncompromising suffragette must admit that the wife
ought to give way in such a case. That is to say, every one will admit
that the wife's domestic authority is subordinate to that of her
husband. But is she to be accorded an autonomy in outside affairs that
is denied her in the home? Her authority is subject to her husband's in
domestic matters--her special sphere; is it to be considered co-ordinate
with his in regulating the affairs of the State? Furthermore, there is
an argument that applies universally, even in the case of those women
who are not subject to the care and protection of a husband, and even, I
do not hesitate to say, where the matters to be decided on would come
specially within their cognisance, and where their judgment would,
therefore, be more reliable than that of men. It is this, that in the
noise and turmoil of party politics, or in the narrow, but rancorous
arena of local factions, it must needs fare ill with what may be called
the passive virtues of humility, patience, meekness, forbearance, and
self-repression. These are looked on by the Church as the special
prerogative and endowment of the female soul ... But these virtues would
soon become sullied and tarnished in the dust and turmoil of a contested
election; and their absence would soon be disagreeably in evidence in
the character of women, who are, at the same time, almost
constitutionally debarred from preeminence in the more robust virtues
for which the soul of man is specially adapted."
Cardinal Gibbons, in a letter to the National League for the Civic
Education of Women--an anti-suffrage organisation--said that "woman
suffrage, if realised, would be the death-blow of domestic life and
happiness" (Nov. 2, 1909).
Rev. William Humphrey, S.J., in his _Christian Marriage_, chap. 16,
remarks that woman is "the subordinate equal of man"--whatever that
means.
A few Roman Catholic prelates, like Cardinal Moran, have advocated equal
suffrage, but they are in the minority. The Pope has not yet definitely
stated the position of the Church; individual Catholics are free to take
any side they wish, as it is not a matter of faith; but the tendency of
Roman Catholicism is against votes for women.
SOURCES
I. Corpus Iuris Canonici: recognovit Aemilius Friedberg. Lipsiae
(Tauchnitz) Pars Prior, 1879. Pars Secunda, 1881.
II. Sacrosanctum Concilium Tridentinum, additis Declarationibus
Cardinalium, Concilii Interpretum, ex ultima recognitione Joannis
Gallemart, etc. Coloniae Agrippinae, apud Franciscum Metternich,
Bibliopolam. MDCCXXVII.
III. The Catholic Encyclopedia. New York, Robert Appleton Company.
(Published with the _Imprimatur_ of Archbishop Parley.)
IV. Various articles by Catholic prelates, due references to which are
given as they occur.
NOTES:
[366] Augustine quoted by Gratian, _Causa_, 33, _Quaest_. 5, chapters
12-16--Friedberg, i, pp. 1254, 1255. Ambrose and Jerome on the same
matter, ibid., _c_. 15 and 17, Friedberg, i, p. 1255. Gratian, _Causa_
30, _Quaest_. 5, _c_. 7--Friedberg, i, p. 1106: Feminae dum maritantur,
ideo velantur, ut noverint se semper viris suis subditas esse et
humiles.
[367] Gratian, _Distinctio_, 30, _c_. 2--Friedberg, i, p. 107: Quecumque
mulier, religioni iudicans convenire, comam sibi amputaverit quam Deus
ad velamen eius et ad memoriam subiectionis illi dedit, tanquam
resolvens ius subiectionis, anathema sit. Cf. Gratian, _Causa_, 15,
_Quaest_. 3--Friedberg, i, p. 750.
[368] Gratian, _Dist_., 30, _c_. 6, Friedberg, i, p. 108. See also
_Deuteronomy_ xxii, 5.
[369] Gratian, _Dist_., 23, _c_. 29--Friedberg, i, p. 86: Mulier,
quamvis docta et sancta, viros in conventu docere non praesumat.
[370] Id., _Causa_, 15, _Quaest_. 3--Friedberg, i, p. 750.
[371] Id., _Causa_, 20, _Quaest_. 1, _c_. 2--Friedberg, i, pp. 843-844,
quoting Gregory to Augustine, the Bishop of the Angles: Addidistis
adhuc, quod si pater vel mater filium filiamve intra septa monasterii in
infantiae annis sub regulari tradiderunt disciplina, utrum liceat eis,
postquam ad pubertatis inoleverint annos, egredi, et matrimonio
copulari. Hoe omnino devitamus, quia nefas est ut oblatis a parentibus
Deo filiis voluptatis frena relaxentur. Id., _c_. 4--Fried., i, p. 844:
quoting Isidore--quicumque a parentibus propriis in monasterio fuerit
delegatus, noverit se ibi perpetuo mansurum. Nam Anna Samuel puerum suum
natum et ablactatum Deo pietate obtulit. Id., _c_. 7--Fried., i, pp.
844-845.
[372] Gratian, _Dist_., 27, _c_. 4 et 9, and _Dist_., 28, _c_.
12--Friedberg, i, pp. 99 and 104. Id., _Causa_, 27, _Quaest_. 1, _c_. 1
and 7--Friedberg, i, pp. 1047 and 1O50.
[373] Gratian, _Causa_, 20, _Quaest_. 2, _c_. 2--Friedberg, i, pp.
847-848.
[374] Cf. Council of Trent, Session 24, "On the Sacrament of Matrimony,"
_Canon_ 6: "If anyone shall say that matrimony contracted but not
consummated is not dissolved by the solemn profession of religion by one
of the parties married: let him be anathema."
Gratian, _Causa_, 27, _Quaest_. ii, _c_. 28--Fried., i, p. 1071. Id.,
_c_. 46, 47, 50, 51--Fried., i, pp. 1076, 1077, 1078.
[375] Gratian, _Causa_, 30, _Quaest_. 2--Fried., i, p. 1100: Ubi non est
consensus utriusque, non est coniugium. Ergo qui pueris dant puellas in
cunabulis et e converso, nihil faciunt, nisi uterque puerorum postquam
venerit ad tempus discretionis consentiat, etiamsi pater et mater hoc
fecerint et voluerint. Id. _Causa_, 31, _Quaest_. 2--Fried., i,
1112-1114: sine libera voluntate nulla est copulanda alicui.
[376] Gratian, _Causa_, 30, _Quaest_. 5, _c_. 6--Friedberg, i, p. 1106:
Nullum sine dote fiat coniugium; iuxta possibilitatem fiat dos, nee sine
publicis nuptiis quisquam nubere vel uxorem ducere praesumat.
[377] Gratian, _Causa_, 30, _Quaest_. 5, _c_. 4--Friedberg, i, p. 1105.
[378] Gratian, _Causa_, 30, _Quaest_. 5, _c_. 7--Friedberg, i, p. 1106.
[379] Id., _c_. 1--Friedberg, i, p. 1104.
[380] Id., _c_. 8--Friedberg, i, p. 1107.
[381] Gratian, _Causa_, 30, _Quaest_. 5, _c_. 9--Friedberg, i, p. 1107.
[382] Gratian, _Causa, 28, _Quaest_. i, _c_. 17--Friedberg, i, p. 1089:
illorum vero coniugia, qui contemptis omnibus illis solempnitatibus solo
affectu aliquam sibi in coniugem copulant, huiuscemodi coniugium non
legitimum, sed ratum tantummodo esse creditur.
[383] Sessio xxiv, cap. i--De Reformatione Matrimonii.
[384] See Gratian, _Dist_., v, _c_. 4--Friedberg, i, p. 8, e.g., ... ita
ut morte lex sacra feriat, si quis vir ad menstruam mulierem accedat.
[385] Gratian, _Dist_., 31, _c_. 11--Friedberg, i, p. 114.
[386] Gratian, _Causa_, 27, _Quaest_. 2, _c_. 18-22, and
24-26--Friedberg i, pp. 1067-1070.
[387] Gratian, _Dist_., 34, c. 4--Friedberg, i, p. 126. Id., _Causa_,
29, _Quaest_. 1--Friedberg, i, p. 1092. Id., _Causa_, 29, _Quaest_. 2,
c. 2.
[388] Id., _Causa_, 29, _Quaest_. 2, c. 1 and 8.
[389] "Divorce," by James Cardinal Gibbons, in the _Century_, May, 1909.
[390] For this and what immediately follows see _Session_ 24 of the
Council of Trent "On the Sacrament of Matrimony" and also the Catholic
Encyclopedia under "Divorce."
[391] Gratian, _Causa_ 28, _Quaest_. i, c. 5--Friedberg, i, pp.
1080-1081. Licite dimittitur uxor que virum suum cogere querit ad malum.
Idolatria, quam secuntur infideles, et quelibet noxia superstitio
fornicatio est. Dominus autem permisit causa fornicationis uxorem
dimitti. Sed quia dimisit et non iussit, dedit Apostolo locum monendi,
ut qui voluerit non dimittat uxorem infidelem, quo sic fortassis possit
fidelis fieri. Si infidelitas fornicatio est, et idolatria infidelitas,
et avaritia idolatria, non est dubitandum et avaritiam fornicationem
esse. Quis ergo iam quamlibet illicitam concupiscentiam potest recte a
fornicationis genere separate, si avaritia fornicatio est?
[392] Friedberg, ii, pp. 782 and 783: Quum enim secundum legitimas
sanctiones, etc.
Lea, in his _History of Confession and Indulgences_, ii, p. 87, quotes
Zanchini, _Tract. de Haeret., cap. 33_, to the effect that goods of a
heretic were confiscated and disabilities inflicted on two generations
of descendants.
CHAPTER VII
HISTORY OF WOMEN'S RIGHTS IN ENGLAND
Since I have now given a brief summary of the canon law, which until the
Reformation marked the general principles that guided the laws of all
Europe on the subject of women, I propose next to consider more
particularly the history of women's rights in England; for the
institutions of England, being the basis of our own, will necessarily be
more pertinent to us than those of Continental countries, to which I
shall not devote more than a passing comment here and there. My inquiry
will naturally fall into certain well-defined parts. The status of the
unmarried woman is different from that of her married sister and will,
accordingly, demand separate consideration. The rights of women, again,
are to be viewed both from the legal and the social standpoint. Their
legal rights include those of a private nature, such as the disposal of
property, and public rights, such as suffrage, sitting on a jury, or
holding office. Under social rights are included the right to an
education, to earn a living, and the like. Let us glance first at the
history of the legal rights of single women.
[Sidenote: Single women: Pollock and Maitland i, pp. 482-485.]
From very early times the law has continued to put the single woman of
mature age on practically a par with men so far as private single rights
are concerned. She could hold land, make a will or contract, could sue
and be sued, all of her own initiative; she needed no guardian. She
could herself, if a widow, be guardian of her own children.
[Sidenote: Pollock and Maitland, ii, 260-313. Blackstone, ii, ch. 13.]
In the case of inheritance, however, women have to within extremely
recent times been treated less generously than men. The male sex has
been preferred in an inheritance; males excluded females of equal
degree; or, in the words of Blackstone: "In collateral inheritances the
male stock shall be preferred to the female; that is, kindred derived
from the blood of the male ancestors, however remote, shall be admitted
before those from the blood of the female, however near; unless where
the lands have, in fact, descended from a female. Thus the relations on
the father's side are admitted _in infinitum_ before those on the
mother's side are admitted at all." Blackstone justly remarks that this
harsh enactment of the laws of England was quite unknown to the Roman
law "wherein brethren and sisters were allowed to succeed to equal
portions of the inheritance." As an example, suppose we look for the
heir of John Stiles, deceased. The order of succession would be:
I. The eldest son, Matthew Stiles, or his issue.
II. If his line is extinct, then Gilbert Stiles and the other sons,
respectively, in order of birth, or their issue.
III. In default of these, all the daughters together, Margarite and
Charlotte Stiles, or their issue.
IV. On the failure of the descendants of John Stiles himself, the issue
of Geoffrey and Lucy Stiles, his parents, is called in, viz.: first,
Francis Stiles, the eldest brother of the whole blood, or his issue.
V. Then Oliver Stiles, and the other whole brothers, respectively, in
order of birth, or their issue.
VI. Then the sisters of the whole blood all together, Bridget and Alice
Stiles, or their issue.
And so on. It will be noted that females of equal degree inherited
together; and that a daughter excluded a brother of the dead man. Men
themselves, if younger sons, have suffered what seems to us a grave
injustice in the prevalence of the right of primogeniture, whereby, if
there are two or more males in equal degree, the eldest only can
inherit. This law might work for the benefit of certain females; thus,
the daughter, granddaughter, or great-granddaughter of an eldest son
will succeed before the younger son.
To public rights, such as sitting on a jury[393] or holding offices of
state, women never were admitted; that is a question that has become
prominent only in the twentieth century and will demand consideration in
its proper place.
[Sidenote: Power of Parents.]
Unlike the Roman law, English law allows parents to disinherit children
completely, if they so desire, without being under any compulsion to
leave them a part of their goods. As to legal power over children, the
mother, as such, is entitled to none, says Blackstone,[394] but only to
reverence and respect. Now, however, by the statute 2 and 3 Vict., c.
54, commonly called _Talfourd's Act_, an order may be made on petition
to the court of chancery giving mothers access to their children and, if
such children are within the age of seven years, for delivery of them to
their mother until they attain that age. But no woman who has been
convicted of adultery is entitled to the benefit of the act. The father
has legal power up to the time when his children come of age; then it
ceases. Until that time, his consent is necessary to a valid marriage;
he may receive the profit of a child's estate, but only as guardian or
trustee, and must render an account when the child attains his majority;
and he may have the benefit of his children's labour while they live
with him.
[Sidenote: Husband and wife. Pollock and Maitland, ii, 399-436.
Blackstone, i, ch 15. Bryce, pp. 818-830.]
We are ready now to observe the status of women in marriage. The
question of their legal rights in this relation offers the most
illuminating insight into their conditions in the various epochs of
history. Matrimony is a state over which the Church has always asserted
special jurisdiction. By the middle of the twelfth century it was law in
England that to it belonged this prerogative. The ecclesiastical court,
for example, pronounced in a given case whether there had been a valid
marriage or not; the temporal court took this decision as one of the
bases for determining a matter of inheritance, whether a woman was
entitled to dower, and the like. The general precepts laid down by canon
law in the case of a wife have already been noted. These rules need now
to be supplemented by an account of the position of women in marriage
under the common law.
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