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.
Agricola, 16.
Germania, 8.
in northern Africa:
hεκ δη τινος ιερουργιασ γινομεναι προλεγουσι τα εσομενα, των παλαι χρηστηριων ουδενος ησσον.
Tacitus, Hist., iv, 61, and v, 24.
Id., Germania, 8.
Ibid., 8.
Ibid., 7.
Ibid., 17.
Ibid.
Ibid., 18.
Ibid., 18 and 19.
Ibid., 19.
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.
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.
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.
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.
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.
Lex Wisigothorum, iii, 2, 2.
Ibid., iii, 2, 3.
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.
Leges Liutprandi, ii, 1.
Lex Wisigothorum, iii, 1, 2 and 3, and iii, 6, 3.
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.
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.
Lex Wisigothorum, iii, Tit. i, 6.
Lex Ripuariorum, 37, 1.
Leges Liutprandi, iv, 4.
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.
For all this see Lex Burgundionum, 34, 1-4.
For all these, see Lex Wisigothorum, iii, 6, 1 and 2.
Capitula Addita ad Legem Alemannorum, 30. Lex Baiuvariorum, vii, 14.
Lex Ripuariorum, Tit., 35. Lex Baiuvariorum, vii. Lex Alemannorum, 51, 1.
Lex Wisigothorum, iii, 6, 1 and 2, and iii, 4, 1.
Leges Liutprandi, vi, 130.
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.
Gregory of Tours, 4, 3.
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.
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.
Cf. Lex Angliorum et Werinorum, vi: de alodibus.
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.
Lex Salica, Tit., 62. Lex Ripuariorum, Tit., 56.
Cf. Lex Wisigothorum, iv, 2, 7 and 9.
Tacitus, Germania, 21.
Legis Liutprandi, ii, 7.
Lex Wisigothorum, iv, 5, I.
Lex Alemannorum, Tit., i.
Lex Baiuvariorum, Tit., i.
Lex Wisigothorum, iv, 2, 20.
Edictum Rotharis, i, 121.
Lex Wisigothorum, iv, 2, 13.
Cf. Capitula addita ad legem Alemannorum, 29. Lex Saxonum, viii, 2.
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.
Lex Saxonum, ix. Lex Ripuariorum, 37, 2.
Lex Saxonum, viii. Lex Wisigothorum, iv, 3, 3. Lex Burgundionum 85, 1, and 62, 1.
Lex Burgundionum, 42, 1; 62, 1; 74, 1.
Lex Baiuvariorum, xiv, 9, 1.
Ibid., xiv, 6.
For all this, see Lex Burgundionum, 24 and 62 and 74. Lex Wisigothorum, iv, Tit. 3. Lex Baiuvariorum, 14. Lex Alemannorum, 55 and 56.
Lex Wisigothorum, iii, 3, 1.
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.
Lex Burgundionum, 47, 1 and 2. The guilty man was put to death.
Lex Salica, Tit., 23.
Id, Tit., 28.
Lex Baiuvariorum, Tit., xiii, 2.
Cf. lex Salica, Tit., 61—a very curious account of formalities to be observed in such a case.
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.
Lex Angliorum et Werinorum, xiv: aut si campionem non habuerit, ipsa ad novem vomeres ignitos examinanda mittatur.
Leges Liutprandi, vi, 140.
Lex Wisigothorum, iii, 4, 16.
See the interesting story of the girl who slew Duke Amalo, as narrated by Gregory of Tours, 9, 27.
The bloody nature of the times is depicted naïvely 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.
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:
French customary law began to be written in the thirteenth century and was greatly affected by the Roman law.
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
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]
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."
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]