[159] Callistratus in Dig., 48, 19, 26: crimen vel poena paterna nullam maculam filio infligere potest. namque unusquisque ex suo admisso sorti subicitur nec alieni criminis successor constituitur; idque divi fratres Hierapolitanis rescripserunt. "Nothing is more unjust," writes Seneca (de Ira, ii, 34, 3), "than that any one should become the heir of the odium excited by his father."

[160] Paulus, v, xii, 1.

[161] Paulus, v, xii, 12.

[162] Ulpian in Dig., 48, 4, 11.

[163] Ulpian in Dig., 48, 4, 11.

[164] Hermogenianus in Dig., 48, 4, 9.

[165] Sulla had not only deprived the children of the proscribed of all their estates, but had also debarred them from aspiring to any political office—see Velleius Paterculus, ii, 28.

[166] For examples of the clemency of Augustus see Suetonius, div. Aug., 33 and 51 and 67; Seneca, de Ira, iii, 23, 4 ff., and 40, 2; Velleius Paterculus, ii, 86, 87.

[167] For Tiberius see, e.g., Tacitus, Annals, iv—case of Silius; id., Annals, iii, 17, 18—case of Piso. For Nero, note Tacitus, Annals, xiii, 43—case of Publius Suilius. Clemency of Claudius mentioned in Dio, 60, 15, 16; of Vitellius in Tacitus, Hist., ii, 62.

[168] Spartianus, Had., 18.

[169] Capitolinus, Anton. Pius, 7. See also the anecdote of Aurelian in Vopiscus, Aurelian, 23.

[170] Codex, iv, 12, 2, rescript of Diocletian: ob maritorum culpam uxores inquietari leges vetant. proinde rationalis noster, si res quae a fisco occupatae sunt dominii tui esse probaveris, ius publicum sequetur.

[171] Gaius, ii, 129 and 132.

[172] Gaius, ii, 132.

[173] Codex, iii, 36, 11: Inter filios ac filias bona intestatorum parentium pro virilibus portionibus aequo iure dividi oportere explorati iuris est.

[174] Gaius, iii, 25-31.

[175] See, e.g., Codex, vi, 60, i: Res, quae ex matris successione fuerint ad filios devolutae, ita sint in parentum potestate, ut fruendi dumtaxat habeant facultatem, dominio videlicet eorum ad liberos pertinente.

[176] For all this, see Codex, v, 9, 5, and vi, 18, q.

[177] Paulus, v, 4, 14, who adds that exile was the penalty if the crime had not been completely carried out. It would seem also that ravished women had the option of deciding whether their seducers should marry them or be put to death—see the vitiatarum electiones as mentioned by Tacitus, Dial. de Orat., 35. According to Ruffus, 40, a soldier who did violence to a girl had his nostrils cut off, besides being forced to give the injured woman a third part of his goods: militi, qui puellae vim adtulerit et stupraverit, nares abscinduntur, data puellae tertia militis facultatum parte.

[178] Paulus, v, 4, 21.

[179] By the lex Fabia. Paulus, v, 30 B. Digest, 48, 15; 17, 2, 51.

[180] Ulpian in Dig., 48, 8, 8; ibid., Tryphoninus, 48, 19, 39.

[181] Paulus, v, 23, 14; id. in Dig., 48, 19, 38.

[182] Paulus, supra cit.

[183] Martial, x, 35, and x, 38.

[184] Sappho, Telesilla, and Corinna belong to an earlier period, when the Oriental idea of seclusion for women had not yet become firmly fixed in Greece. Women like Agallis of Corcyra, who wrote on grammar (Athenaeus, i, 25) and lived in a much later age, doubtless belonged to the hetaerae class.

[185] See, e.g., Pliny, Letters, v, 16.

[186] Pliny, Letters, i, 16.

[187] Persius, i, 4-5: Ne mihi Polydamas et Troiades Labeonem praetulerint? "Are you afraid that Polydamas and the Trojan Ladies will prefer Labeo to me?" The Trojan Ladies, of course, stand for the aristocratic classes, Colonial Dames, so to speak, who were fond of tracing their descent back to Troy just as Americans like to discover that their ancestors came over in the Mayflower.

[188] Juvenal, vi, 434-440.

[189] Cf. Martial, ii, 90: sit mihi verna satur, sit non doctissima coniunx.

[190] The famous verses of Martial:

Quid tibi nobiscum, ludi scelerate magister? Invisum pueris virginibusque caput!

[191] Vespasian (69-79 A.D.) started free public education by appointing Quintilian Professor of Rhetoric subsidised by the state. Succeeding emperors enlarged upon it; but especially Alexander Severus (222-235 A.D.), who instituted salaries for teachers of rhetoric, literature, medicine, mechanics, and architecture in Rome and the provinces, and had poor boys attend the lectures free of charge—see Lampridius, Alex. Severus, 44.

[192] Pliny, Paneg., 26. Spartianus, Hadrian, 7, 8-9. Capitolinus, Anton. Pius 8; id. M. Anton. Phil. II. Lampridius, Alex. Severus, 57.

[193] Pliny, Letters, vii, 18. The sum was 500,000 sesterces.

[194] Any infringement of this vow was punished by burial alive—for instances, see Suetonius, Domitian, 8; Herodian, iv, 6, 4: Pliny, Letters iv, 11; Dio, 77, 16 (Xiphilin). Their paramours were beaten to death.

[195] A full account of the Vestals will be found in Aulus Gellius, i, 12.

[196] Quintilian, vii, 3, 27: ad servum nulla lex pertinet. On the rare instances when a slave could inform against his master in a public court, see Hermogenianus in Dig., v, 1, 53.

[197] Gaius, i, 52 ff.

[198] Gaius, iii, 222. Cf. Juvenal vi, 219-223, and 474-495.

[199] Gaius, iii, 222. Salvius Julianus, Pars Secunda, xv. Aulus Gellius, xx, i.

[200] Paulus, v, 16.

[201] Paulus, iii, v, 5 ff. Pliny, Letters, viii, 14. Tacitus, Annals xiii, 32.

[202] Valerius Maximus, vi, 8, in a chapter entitled de fide servorum speaks with great admiration of instances of fidelity on the part of slaves. Seneca ate with his—Epist. 47, 13. Martial laments the death of a favourite slave girl—v, 34 and 37. Dio (62, 27—Xiphilin) notes the heroic conduct of Epicharis, a freedwoman, who was included in a conspiracy against Nero; but she revealed none of its secrets, though tortured in every way by Tigellinus. The pages of Pliny are full of the spirit of kindliness to slaves.

[203] See Tacitus, Annals, xiv, 42 ff.

[204] Suetonius, Claudius, 25. Dio, 60, 29 (Xiphilin).

[205] Sec, e.g., Seneca, de Clem., i,18, 1 and 2—especially the anecdote of Vedius Pollio (mentioned also by Dio, 54, 23).

The interesting letter of Pliny, viii, 16; and cf. iii, 14, and v, 19. Juvenai, vi, 219-223.

[206] Spartianus, Hadrian, 18.

[207] Gaius, i, 52 ff. Cf. Ulpian in Dig., 1, 12, 1 and 8.

[208] The punishment for this was pecuniary damages equal to twice the highest value of a slave during the year in which he was killed.

[209] Ulpian in Dig., i., 12, 8: hoc quoque officium praefecto urbi a divo Severo datum est, ut mancipia tueatur ne prostituantur.

[210] Vopiscus, Aurelian, 49

[211] Vopiscus, Tacitus, 9.



CHAPTER II

WOMEN AND THE EARLY CHRISTIAN CHURCH

Meanwhile a new world force, destined to overthrow the old order of things, was growing slowly to maturity and spreading out its might until eventually it fought its way to preeminence. I have traced the rights of women under the regime of pagan Rome; I shall inquire next into the position of women under Christianity. We must first note the attitude of the early Christians towards women in general; for that attitude will naturally be reflected in any laws made after the Church has become supreme and is combined with and directs the State. That will demand a special chapter on Canon Law; but in the present chapter I propose to show how women were regarded by the Christians in the centuries which were the formative period of the Church.

The direct words of Christ so far as they relate to women and as we have them in the Gospels concern themselves wholly to bring about purity in the relation of the sexes. "Ye have heard that it was said, Thou shalt not commit adultery; but I say unto you, that every one that looketh on a woman to lust after her hath committed adultery with her already in his heart."[212] His commands on the subject of divorce are positive and unequivocal: "It was said also, Whosoever shall put away his wife, let him give her a writing of divorcement; but I say unto you, that every one that putteth away his wife, saving for the cause of fornication, maketh her an adultress; and whosoever shall marry her when she is put away, committeth adultery."[213] Christ was content to lay down great ethical principles, not minute regulations. Of any inferiority on the part of women he says nothing, nor does be concern himself with giving any directions about their social or legal rights. He blessed the marriage at Cana; and to the woman taken in adultery he showed his usual clemency. For the rest, his relations with women have an atmosphere of rare sympathy, gentleness, and charm.

But as soon as we leave the Gospels and read the Apostles we are in a different sphere. The Apostles were for the most part men of humble position, and their whole lives were directed by inherited beliefs which were distinctly Jewish and Oriental or Greek; not Western. In the Orient woman has from the dawn of history to the present day occupied a position exceedingly low. Indeed, in Mohammedan countries she is regarded merely as a tool for the man's sensual passions and she is not allowed to have even a soul. In Greece women were confined to their houses, were uneducated, and had few public rights and less moral latitude; their husbands had unlimited license.[214] The Jewish ideal is by no means a lofty one and cannot for a moment compare with the honour accorded the Roman matron under the Empire. According to Genesis a woman is the cause of all the woes of mankind. Ecclesiasticus declares that the badness of men is better than the goodness of women.[215] In Leviticus[216] we read that the period of purification customary after the birth of a child is to be twice as long in the case of a female as in a male. The inferiority of women was strongly felt; and this conception would be doubly operative on men of humble station who never travelled, who had received little education, and whose ideas were naturally bounded by the horizon of their native localities. We are to remember also that the East is the home of asceticism, a conviction alien to the Western mind. There is no parallel in Western Europe to St. Simeon Stylites.

We would, therefore, expect to find in the teachings of the Apostles an expression of Jewish, i.e., Eastern ideals on the subject of women; and we do so find them. Following the express commands of Christ, they exhorted to sexual purity and reiterated his injunctions on the matter of divorce. They went much farther and began to legislate on more minute details. Paul allows second marriages to women[217]; but thinks it better for a widow to remain as she is.[218] It is better to marry than to burn; yet would he prefer that men and women should remain in celibacy.[219] The power of the father to arrange a marriage for his daughter was, under Roman law, limited by her consent; but the words of Paul make it clear that it was now to be a Christian precept that a father could determine on his own responsibility whether his daughter should remain a virgin.[220] Wives are to be in subjection to their husbands, and "let the wife see that she fear her husband."[221] Woman is the weaker vessel[222]; she is to be silent in church; if she desires to learn anything, she should ask her husband at home.[223] Furthermore: "I permit not a woman to teach, nor to have dominion over a man, but to be in quietness. For Adam was first formed, then Eve; and Adam was not beguiled, but the woman being beguiled hath fallen into transgression; but she shall be saved through childbearing, if they continue in faith and love and sanctification with sobriety."[224] The apparel of women also evoked legislation from the Apostles. Women were to pray with their heads veiled "for the man is not of the woman, but the woman for the man."[225] Jewels, precious metal, and costly garments were unbecoming the modest woman.[226]

In this early stage of Christianity we may already distinguish three conceptions that were quite foreign to the Roman jurist: I. The inferiority and weakness of women was evident from the time of Eve and it was an act of God that punished all womankind for Eve's transgression. Woman had been man's evil genius. II. She was to be submissive to father or husband and not bring her will in opposition to theirs. III. She must not be prominent in public, she must consider her conduct and apparel minutely, and she was exhorted to remain a virgin, as being thus in a more exalted position. At the same time insistence was placed on the fact that a virgin, wife, and widow must be given due honour and respect, must be provided for, and allowed her share in taking part in those interests of the community which were considered her sphere.

If, now, we examine the writings of the Church Fathers, we shall see these ideas elaborated with all the vehemence of religious zeal.

The general opinions of the Fathers regarding women present a curious mixture. They are fond of descanting on the fact that woman is responsible for all the woes of mankind and that her very presence is dangerous. At the same time they pay glowing tribute to women in particular. St. Jerome held that women were naturally weaker, physically and morally, than men.[227] The same saint proves that all evils spring from women[228]; and in another passage he opines that marriage is 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 recensuit G. Waitz. Hannoverae et Lipsiae, 1905.

IX. Pauli Historia Langobardorum: edidit Georg Waitz. Hannoverae, impensis Bibliopolii Hahniani, 1878.

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."