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]

It has always been and still is the boast of the Roman Catholic Church that it has been the supreme protector of women on account of its stand on divorce. Says Cardinal Gibbons^[389]: "Christian wives and mothers, what gratitude you owe to the Catholic Church for the honorable position you now hold in society! If you are no longer regarded as the slave, but the equal, of your husbands; if you are no longer the toy of his caprice, and liable to be discarded at any moment; but if you are recognised as the mistress and queen of your household, you owe your emancipation to the Church. You are especially indebted for your liberty to the Popes who rose up in all the majesty of their spiritual power to vindicate the rights of injured wives against the lustful tyranny of their husbands." In view of such a claim I may be justified in entering a somewhat more detailed account of this subject.

On the subject of divorce the Roman Catholic Church took the decided position which it continues to maintain at the present day. Marriage when entered upon under all the conditions demanded by the Church for a valid union is indissoluble.^[390] A separation "from bed and board" (quoad thorum seu quoad cohabitationem) is allowed for various causes, such as excessive cruelty, for a determinate or an indeterminate period; but there is no absolute divorce even for adultery. For this cause a separation may, indeed, take place, but the bond of matrimony is not dissolved thereby and neither the innocent nor the guilty party may marry again during the lifetime of the other partner.

All this seems very rigorous. It is true that the Roman Catholic Church does not permit "divorce." But it allows fourteen cases where a marriage can be declared absolutely null and void, as if it had never existed; and in these cases the man or woman may marry again. To say that the Roman Church does not allow divorce is, therefore, playing upon words. The instruments used to render its strict theory ineffective are "diriment impediments" and "dispensations."

By the doctrine of "diriment impediments" the Pope or a duly constituted representative can declare that a marriage has been null and void from the very beginning because of some impediment defined in the canon law. Canon IV of the twenty-fourth session of the Council of Trent anathematises anyone who shall say that the Church cannot constitute impediments dissolving marriage, or that she has erred in constituting them. The impediments which can annul marriage are described in the official Catholic Encyclopedia, vol. vii, pages 697-698. Among them are impuberty and impotency. Then there is "disparity of worship," which renders void the marriage of a Christian—that is, a Roman Catholic, with an infidel,—that is, one who is unbaptised. Marriage of a Roman Catholic with a baptised non-Catholic constitutes a "relative" impediment and needs a special dispensation and provisoes, such as a guarantee to bring up the children in the Roman faith to give it validity. Another impediment is based on the presumption of want of consent, "the nullity being caused by a defect of consent." "This defect," says the Catholic Encyclopedia, "may arise from the intellect or the will; hence we have two classes. Arising from the intellect we have: insanity; and total ignorance, even if in confuso of what marriage is (this ignorance, however, is not presumed to exist after the age of puberty has been reached); and lastly error, where the consent is not given to what was not intended. Arising from the will, a defect of consent may be caused through deceit or dissimulation, when one expresses exteriorly a consent that does not really exist; or from constraint imposed by an unjust external force, which causes the consent not to be free." Consanguinity and affinity are diriment impediments. Consanguinity "prohibits all marriages in the direct ascending or descending line in infinitum, and in the collateral line to the fourth degree or fourth generation." Affinity "establishes a bond of relationship between each of the married parties and the blood relations of the other, and forbids marriage between them to the fourth degree. Such is the case when the marriage springs from conjugal relations; but as canon law considers affinity to spring also from illicit intercourse, there is an illicit affinity which annuls marriage to the second degree only." Then there is "spiritual relationship"; for example, the marriage of one who stood as sponsor in confirmation with a parent of the child is null and void.

Under the canon law, even more resources are open for the man who is tired of his wife; by the doctrine, namely, of "spiritual fornication." Adultery is, of course, recognised as the cause that admits a separation. But the canon law remarks that idolatry and all harmful superstition —by which is meant any doctrine that does not agree with that of the Church—is fornication; that avarice is also idolatry and hence fornication; that in fact no vice can be separated from idolatry and hence all vices can be classed as fornication; so that if a husband only tried a little bit, he could without much trouble find some "vice" in his wife that would entitle him to a separation.^[391]

When all these fail, recourse can be had to a dispensation. The Church reserves the right to give dispensations for all impediments. Canon III of the twenty-fourth session of Trent says: "If anyone shall say, that only those degrees of consanguinity and affinity which are set down in Leviticus [xviii, 6 ff.] can hinder matrimony from being contracted, and dissolve it when contracted; and that the Church can not dispense in some of those degrees, or ordain that others may hinder and dissolve it; let him be anathema."

The minute and far-fetched subtleties which the Roman Church has employed in the interpretation of these relationships make escape from the marital tie feasible for the man who is eager to disencumber himself of his life's partner. The man of limited means will have a hard time of it. The great and wealthy have been able at all periods, by working one or more of these doctrines, to reduce the theory of the Roman Church to nullity in practice. Napoleon had his marriage to Josephine annulled on the ground that he had never intended to enter into a religious marriage with her, although the day before the ceremony he had had the union secretly blessed by Cardinal Fesch. On the basis of this avowed lack of intent, his marriage with Josephine was declared null and void, and he was free to marry Louisa. A plea along the same lines is being worked by the Count de Castellane now. Louis XII, having fallen in love with Anne of Brittany, suddenly discovered that his wife was his fourth cousin, that she was deformed, and that her father had been his godfather; and for this the Pope gave him a dispensation and his legitimate wife was sent away. The Pope did not thunder against Louis XIV for committing adultery with women like Louise de la Vallière and Madame de Montespan. It is certainly true that in the case of Philip Augustus of France and Henry VIII of England the Pope did protect injured wives; but both these monarchs were questioning the Vatican's autocracy. The matrimonial relations of John of England, Philip's contemporary, were more corrupt than those of the French king; but, while the Pope chastised John for his defiance of his political autonomy, he did not excommunicate him on any ground of morality. The statement of Cardinal Gibbons is not entirely in accordance with history; he does not take all facts into consideration, as is also true of his complacent assumption that outside of the Roman Church no economic forces and no individuals have had any effect in elevating the moral and economic status of women.

Questions such as those of inheritance belong properly to civil law; but the canon law claimed to be heard in any case into which any spiritual interest could be foisted. Thus in the year 1199 Innocent III enacted that children of heretics be deprived of all their offending parents' goods "since in many cases even according to divine decree children are punished in this world on account of their parents."^[392]

The attitude of the Roman Catholic Church towards women's rights at the present day is practically the same as it has been for eighteen centuries. It still insists on the subjection of the woman to the man, and it is bitterly hostile to woman suffrage. This position is so well illustrated by an article of the Rev. David Barry in the Roman Catholic paper, the Dublin Irish Ecclesiastical Review, that I cannot do better than quote some of it. "It seems plain enough," he says, "that allowing women the right of suffrage is incompatible with the high Catholic ideal of the unity of domestic life. Even those who do not hold the high and rigid ideal of the unity of the family that the Catholic Church clings to must recognise some authority in the family, as in every other society. Is this authority the conjoint privilege of husband and wife? If so, which of them is to yield, if a difference of opinion arises? Surely the most uncompromising suffragette must admit that the wife ought to give way in such a case. That is to say, every one will admit that the wife's domestic authority is subordinate to that of her husband. But is she to be accorded an autonomy in outside affairs that is denied her in the home? Her authority is subject to her husband's in domestic matters—her special sphere; is it to be considered co-ordinate with his in regulating the affairs of the State? Furthermore, there is an argument that applies universally, even in the case of those women who are not subject to the care and protection of a husband, and even, I do not hesitate to say, where the matters to be decided on would come specially within their cognisance, and where their judgment would, therefore, be more reliable than that of men. It is this, that in the noise and turmoil of party politics, or in the narrow, but rancorous arena of local factions, it must needs fare ill with what may be called the passive virtues of humility, patience, meekness, forbearance, and self-repression. These are looked on by the Church as the special prerogative and endowment of the female soul ... But these virtues would soon become sullied and tarnished in the dust and turmoil of a contested election; and their absence would soon be disagreeably in evidence in the character of women, who are, at the same time, almost constitutionally debarred from preeminence in the more robust virtues for which the soul of man is specially adapted."

CHAPTER VII

II. If his line is extinct, then Gilbert Stiles and the other sons, respectively, in order of birth, or their issue.

To public rights, such as sitting on a jury^[393] or holding offices of state, women never were admitted; that is a question that has become prominent only in the twentieth century and will demand consideration in its proper place.

Unlike the Roman law, English law allows parents to disinherit children completely, if they so desire, without being under any compulsion to leave them a part of their goods. As to legal power over children, the mother, as such, is entitled to none, says Blackstone,^[394] but only to reverence and respect. Now, however, by the statute 2 and 3 Vict., c. 54, commonly called Talfourd's Act, an order may be made on petition to the court of chancery giving mothers access to their children and, if such children are within the age of seven years, for delivery of them to their mother until they attain that age. But no woman who has been convicted of adultery is entitled to the benefit of the act. The father has legal power up to the time when his children come of age; then it ceases. Until that time, his consent is necessary to a valid marriage; he may receive the profit of a child's estate, but only as guardian or trustee, and must render an account when the child attains his majority; and he may have the benefit of his children's labour while they live with him.

We are ready now to observe the status of women in marriage. The question of their legal rights in this relation offers the most illuminating insight into their conditions in the various epochs of history. Matrimony is a state over which the Church has always asserted special jurisdiction. By the middle of the twelfth century it was law in England that to it belonged this prerogative. The ecclesiastical court, for example, pronounced in a given case whether there had been a valid marriage or not; the temporal court took this decision as one of the bases for determining a matter of inheritance, whether a woman was entitled to dower, and the like. The general precepts laid down by canon law in the case of a wife have already been noted. These rules need now to be supplemented by an account of the position of women in marriage under the common law.

Under the older common law the husband was very much lord of all he surveyed and even more. An old enactment thus describes a husband's duty^[395]: "He shall treat and govern the aforesaid A well and decently, and shall not inflict nor cause to be inflicted any injury upon the aforesaid A except in so far as he may lawfully and reasonably do so in accordance with the right of a husband to correct and chastise his wife." Blackstone, who wrote in 1763, has this to say on the husband's power to chastise his wife: "The husband also, by the old law, might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children, for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds, and the husband was prohibited from using any violence to his wife aliter quam ad, virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet.^[396] The civil law gave the husband the same, or a larger, authority over his wife; allowing him for some misdemeanours flagellis et fustibus acriter verberare uxorem [to give his wife a severe beating with whips and clubs]; for others, only modicam castigationem adhibere [to apply moderate correction]. But with us in the politer reign of Charles the Second, this power of correction began to be doubted; and a wife may now have security of the peace against her husband, or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege; and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour." Doubtless what Mr. Weller, Sr., describes as the "amiable weakness" of wife-beating was not necessarily confined to the "lower rank." For instance, some of the courtly gentlemen of the reign of Queen Anne were probably not averse to exercising their old-time prerogative. Says Sir Richard Steele (Spectator, 479): "I can not deny but there are Perverse Jades that fall to Men's Lots, with whom it requires more than common Proficiency in Philosophy to be able to live. When these are joined to men of warm Spirits, without Temper or Learning, they are frequently corrected with Stripes; but one of our famous Lawyers is of opinion, That this ought to be used sparingly." The law was, indeed, even worse than might appear from the words of Blackstone. The wife who feared unreasonable violence could, to be sure, bind her husband to keep the peace; but she had no action against him. A husband who killed his wife was guilty of murder, but the wife who slew her husband was adjudged guilty of petty treason; and whereas the man would be merely drawn and hanged, the woman, until the reign of George III, was drawn and burnt alive.^[397]

The right of a husband to restrain a wife's liberty may not be said to have become completely obsolete until the case of Reg. v. Jackson in 1891.^[398] Wife-beating is still a flagrantly common offence in England.

Turning now to the question of the wife's property in marriage, we shall be forced to believe that Blackstone was an optimist of unusual magnitude when he wrote that the female sex was "so great a favourite of the laws of England." Not to weary the reader by minute details, I cannot do better than give Messrs. Pollock and Maitland's excellent summary of the final shape taken by the common law— a glaring piece of injustice, worthy of careful reading, and in complete accord with Apostolic injunctions: "I. In the lands of which the wife is tenant in fee, whether they belonged to her at the date of the marriage or came to her during the marriage, the husband has an estate which will endure during the marriage, and this he can alienate without her concurrence. If a child is born of the marriage, thenceforth the husband as 'tenant by courtesy' has an estate which will endure for the whole of his life, and this he can alienate without the wife's concurrence. The husband by himself has no greater power of alienation than is here stated; he cannot confer an estate which will endure after the end of the marriage or (as the case may be) after his own death. The wife has during the marriage no power to alienate her land without her husband's concurrence. The only process by which the fee can be alienated is a fine to which both husband and wife are parties and to which she gives her assent after a separate examination.

"II. A widow is entitled to enjoy for her life under the name of dower one third of any land of which the husband was seised in fee at any time during the marriage. The result of this is that during the marriage the husband cannot alienate his own land so as to bar his wife's right of dower, unless this is done with her concurrence, and her concurrence is ineffectual unless the conveyance is made by fine." [This inconvenience for an unscrupulous husband was evaded in modern conveyancy by a device of extreme ingenuity finally perfected only in the eighteenth century. Professor James Bryce remarks (p. 820): "As this right (i.e., the right of dower) interfered with the husband's power of freely disposing of his own land, the lawyers at once set about to find means of evading it, and found these partly in legal processes by which the wife, her consent being ascertained by the courts, parted with her right, partly by an ingenious device whereby lands could be conveyed to a husband without the right of dower attaching to them, partly by giving the wife a so-called jointure which barred her claim."]

"III. Our law institutes no community, even of movables, between husband and wife. Whatever movables the wife has at the date of the marriage become the husband's, and the husband is entitled to take possession of and thereby to make his own whatever movables she becomes entitled to during the marriage, and without her concurrence he can sue for all debts that are due her. On his death, however, she becomes entitled to all movables and debts that are outstanding, or (as the phrase goes) have not been 'reduced into possession.' What the husband gets possession of is simply his; he can freely dispose of it inter vivos or by will. In the main, for this purpose as for other purposes, a 'term of years' is treated as a chattel, but under an exceptional rule the husband, though he can alienate his wife's 'chattel real' inter vivos, cannot dispose of it by his will. If he has not alienated it inter vivos, it will be hers if she survives him. If he survives her, he is entitled to her 'chattels real' and is also entitled to be made the administrator of her estate. In that capacity he has a right to whatever movables or debts have not yet been 'reduced into possession' and, when the debts have been paid, he keeps these goods as his own. If she dies in his lifetime, she can have no other intestate successor. Without his consent she can make no will, and any consent that he may have given is revocable at any time before the will is proved.

"V. During the marriage the husband is in effect liable to the whole extent of his property for debts incurred or wrongs committed by his wife before the marriage, also for wrongs committed during the marriage. The action is against him and her as co-defendants. If the marriage is dissolved by his death, she is liable, his estate is not. If the marriage is dissolved by her death, he is liable as her administrator, but only to the extent of the property which he takes in that character." [Mr. Ashton, in his very interesting book, p. 31, quotes a peculiar note from a Parish Register in the reign of Queen Anne to this effect: "John Bridmore and Anne Sellwood, both of Chiltern all Saints, were married October 17, 1714. The aforesaid Anne Sellwood was married in her Smock, without any clothes or headgier on." "This is not uncommon," remarks Mr. Ashton, "the object being, according to a vulgar error, to exempt the husband from the payment of any debts his wife may have contracted in her ante-nuptial condition. This error seems to have been founded on a misconception of the law, as it is laid down 'the husband is liable for the wife's debts, because he acquires an absolute interest in the personal estate of his wife.' An unlearned person from this might conclude, and not unreasonably, that if his wife had no estate whatever he could not incur any liability."]

A perusal of these laws shows that they are immensely inferior to the Roman law, which not only gave the wife full control of her property, but protected her from coercion and bullying on the part of the husband. The amendment of these injustices has been very recent indeed. Successive statutes in 1870, 1874, and 1882^[399] finally abrogated the law which gave the husband full ownership of his wife's property by the mere act of marriage. Beginning with the year 1857, too, enlightenment in England had progressed to such a remarkable degree that certain acts were passed forbidding a husband to seize his wife's earnings and neglect her^[400]; and she was actually allowed to keep her own wages after the desertion of her lord. Before that time he might desert his wife repeatedly, and return from time to time to take away her earnings and sell everything she had acquired. An act in 1886 (49 and 50 Vict., c. 52) gave magistrates the power to order a husband to pay his wife a weekly sum, not exceeding two pounds, for her support and that of the children if it appeared to the magistrates that the deserting husband had the means of maintaining her, but was unwilling to do so. Still, the husband can at any time terminate his desertion and force his wife to take him back on penalty of losing all rights to such maintenance. There was frantic opposition to all of these revolutionary enactments and many prophets arose crying woe; but the acts finally passed and England still lives.