[355] Lex Baiuvariorum, _t.i.t._, xiii, 2.

[356] Cf. lex Salica, _t.i.t._, 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 a.s.sert 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 h.e.l.l-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 b.l.o.o.d.y nature of the times is depicted navely 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 a.s.sessors, 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 princ.i.p.al 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 pa.s.sages of Justinian's law collection have binding force in Germany.

III. Only those glossed pa.s.sages 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 inst.i.tutions 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 part.i.tion 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 n.o.bles 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 partic.i.p.ation 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, d.u.c.h.ess 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 a.s.sert 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 s.e.x 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--prost.i.tution. We might expect that since the Roman Catholic Church insists so on chast.i.ty 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 att.i.tude 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 ATt.i.tUDE 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 "G.o.d has given it to her as a veil and as a sign of her subjection."[367] A woman who a.s.sumed 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 G.o.d 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 G.o.d 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 G.o.d. 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 chast.i.ty, 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 s.e.xual 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 dest.i.tute, 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 grat.i.tude 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 emanc.i.p.ation 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 l.u.s.tful 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 const.i.tuted 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 const.i.tute impediments dissolving marriage, or that she has erred in const.i.tuting them. The impediments which can annul marriage are described in the official Catholic Encyclopedia, vol. vii, pages 697-698. Among them are imp.u.b.erty 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 const.i.tutes 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 cla.s.ses. 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 p.u.b.erty 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 superst.i.tion--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 cla.s.sed 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 ent.i.tle him to a separation.[391]