unresistingly yield to priestly power, but made many attempts to
take their temporal concerns from under priestly control. But under
the general paucity of education, and the abnegation of the will so
sedulously inculcated by the Church as the supreme duty of the laity,
its dread power brought to bear in the enforcement of its teaching by
terrifying threats of excommunication and future eternal torment, the
rights of even the male portion of the people were gradually lost. The
control of the priesthood over all things of a temporal as well as
of a spiritual nature, tended to make them a distinct body from the
laity. In pursuance of its aims for universal dominion, the Church saw
the necessity of assuming control of temporal affairs. Rights were
divided into those pertaining to persons and things; the rights of
persons belonged to the priesthood alone, but inasmuch as every man,
whatever his condition, could become a priest, and no woman however
learned or pious or high in station could be admitted to its ranks,
the whole tendency of ecclesiastical law was to divide mankind into
a holy or divine sex, and an unholy or impious one.[14] Thus Canon
Law still farther separated those whose interests were the same,
creating an antagonism in the minds of all men against all women, which
bearing upon all business of ordinary life between men and women, fell
with its greatest weight upon women. It corrupted the Common Law of
England, and perverted the civil codes of other nations. Under Canon
Law wives were deprived of the control of both person and property,
while sisters were not allowed to inherit with brothers; property,
according to old ecclesiastical language, going “to the worthiest of
blood.” Blackstone acknowledges that this distinction between brothers
and sisters reflects shame upon England, and was no part of the old
Roman law, under which the children of a family inherited equally
without distinction of sex.[15] It was as late as 1879 before the Canon
Law in regard to the sole inheritance of sons was repealed in one of
the Swiss Cantons. The influence of this law in creating selfishness
was manifested by the opposition it met, brothers piteously asserting
ruin to themselves by this act of justice to their sisters. Whenever
the Canon Law is analyzed it is found destructive to the higher moral
sentiments of humanity. A woman was prohibited the priesthood, and as
the property of men entering orders became forfeited to the Church, the
real intent of this law—that of obtaining control of property—which
otherwise might have escaped the grasping hand of the church, is easily
discernible. From its first theory of woman’s inferiority to its last
struggle for power at the present day, the influence and action of the
Patriarchate is clearly seen. The touch of the Church upon family life,
inheritance and education, increased the power of the Patriarchate.
As celibacy proved a lucrative method of bringing wealth into its
coffers, so marriage was early made a source of revenue to the Church,
Canon Law creating it a sacrament to be performed at the church door.
Owing, however, to the innate sinfulness of marriage, this sacrament
was not for many years allowed to take place within the sacred building
dedicated to God, and deemed too holy to permit the entrance of a woman
within its sacred walls at certain periods of her life. In order to
secure full control of this relation marriage unblessed by a priest
was declared to be concubinage, and carried with it deprivation of
church privileges, which the ignorance of the people held to be of
vital importance. In entering this relation the wife was compelled to
relinquish her name, her property, the control of her person, her own
sacred individuality, and to promise obedience to her husband in all
things. Certain hours of the day to suit the convenience of priests
were set aside as canonical, after which time no marriage could be
celebrated.
Nor has this priestly control of marriage been confined to the
Catholics alone. Similar laws were extant after the Reformation. In
England 1603, Canon 62 instituted that under penalty of suspension
people could not marry except between the hours of eight and twelve
in the forenoon, nor was marriage then allowed in any private place
but must be performed at the church door.[16] The rapid growth of the
Canon Law in England must be ascribed to avarice; the denial to wives
of any right of property in the marital union being an example. At
this period Canon Law began to take cognizance of crimes, establishing
an equivalent in money for every species of wrong doing. The Church
not only remitted penalty for crimes already committed, but sold
indulgences for the commission of new ones. Its touch soon extended
to all relations of life. Marriages within the seventh degree were
forbidden by the Church as incestuous,[17] but to those able to pay
for such indulgences a dispensation for such “incestuous” marriage
was readily granted. No crime so great it could not be condoned for
money. Thus through Canon Law was seen the anomaly of legal marriage
between the laity pronounced concubinage, while the concubines of
priests were termed “wives.” As soon as the legality of marriage was
made dependent upon priestly sanction the door of gross immorality was
widely opened.[18] All restrictions connected with this relation were
made to fall with heaviest weight upon woman. Husbands were secured the
right of separation for causes not freeing wives; even the adultery
of the husband was not deemed sufficient cause unless he brought his
mistress into the same house with his wife.[19] Church and State
sustained each other. Conviction of the husband for a capital crime
gave the wife no release from the marriage bond, yet in case of the
husband’s treason, his innocent wife and children were robbed of all
share in the estate of the criminal husband and father and were reduced
to beggary, his estate escheating to the State. As under civil law
so under ecclesiastical, the Church recognized but slight difference
in the guilt of a contumacious husband and that of his pious wife
and children.[20] It was a principle of the Church that the innocent
must suffer for the guilty, especially when the innocent were women
and children powerless to aid themselves. At its every step Canon Law
injured woman. The clergy assuming to be an order of spiritual beings,
claimed immunity from civil law and allowed for themselves an “arrest
of judgment” ultimately enlarged so as to include all male persons who
could read and write. This arrest known as “benefit of clergy” was
denied to all women, who were liable to sentence of death for the first
crime of simple larceny, bigamy, etc.[21] Men who by virtue of sex
could become priests if able to read, were for the same crimes punished
by simple branding in the hand, or a few months imprisonment, while a
woman was drawn and burned alive. Did not history furnish much proof
of this character it would be impossible to believe that such barbaric
injustice was part of English law down to the end of the eighteenth
century. Woman first rendered ineligible to the priesthood, was then
punished for this ineligibility.
Blackstone recognizes as among the remarkable legal events of the
kingdom, the great alteration in the laws through the separation
of ecclesiastical courts from the civil. Matrimonial causes, or
injuries respecting the rights of marriage are recognized by him as
quite an undisturbed branch of ecclesiastical jurisdiction, from the
Church having so early converted this contract into a sacramental
ordinance.[22] During many centuries education was denied to woman in
Christian countries for reasons connected with her ineligibility to the
priesthood. The art of reading is by scholars believed to have been one
of the ancient mysteries taught at Eleusis and other olden temples;
learning, then, as at later periods, was in the hands of priests;
therefore the fact of being able to read was synonymous with the right
of entering the priesthood. This right appertained to women in many
ancient nations even under the Patriarchate. Higgins shows that the
word _Liber_ from which our words liberty, freedom, are derived, is
one and the same as _liber_, a book, and had close connection with the
intellectual, literary, and priestly class. As under Christian doctrine
the priesthood was denied to woman, so under the same rule learning was
prohibited to her.[23] To permit woman’s education under Christianity
would have been a virtual concession of her right to the priesthood. In
not allowing her “benefit of clergy” the priests were but consistent
with themselves and their pretensions as to the superior holiness of
the male sex. That a woman should be burned alive for a crime whose
only punishment for a man was a few months imprisonment, was in unison
with the whole teaching of the Christian Church regarding woman. Under
Canon Law many of the shields theretofore thrown about women were
removed. Punishment for crimes against them lessened, while crimes
committed by them were more severely punished. Rape, which in early
English history was termed felony, its penalty, death, was regarded in
a less heinous light under clerical rule.
Under the political constitutions of the Saxons, bishops had seats in
the national council and all laws were prefaced by a formal declaration
of their consent. By their influence it became a general law that a
woman could never take of an inheritance with a man, unless perhaps
by the particular and ancient customs of some cities or towns; while
daughters at a father’s death could be left totally unprovided for. A
law was enacted in the reign of Edward VI that no son should be passed
over in his father’s will unless disinherited in plain terms and a
just cause given. In case of daughters, sex was deemed “a just cause”
for leaving them in poverty. The earlier laws of the Danish Knut, or
Canute, show that the estate was then divided among all the children.
Under Canon Law, the testimony of a woman was not received in a court
of justice. She was depicted by the Church as the source of all evil,
the mother of every ill.[24] Legislation had the apparent aim of
freeing the clergy from all responsibility to the civil or moral law,
and placing the weight of every sin or crime upon woman.
A council at Tivoli in the Soisonnais, A.D. 909, presided over
by twelve bishops, promulgated a Canon requiring the oath of seven
persons to convict a priest with having lived with a woman; if their
oath failed of clearing him he was allowed to justify himself upon
his sole oath. Under Canon Law a woman could not bring an accusation
unless prosecuted for an injury done to herself. It is less than
thirty years since this law was extant in Scotland; and as late as
1878, that through the influence of Signor Morelli, the Italian
Parliament repealed the old restriction existant in that country
regarding woman’s testimony. Under Canon Law a woman could not be
witness in ecclesiastical or criminal suits, nor attest a will.[25]
To cast doubts upon a person’s word is indicative of the most supreme
contempt, importing discredit to the whole character. That a woman was
not allowed to attest a will, nor become a witness in ecclesiastical
suits, implied great degradation and is a very strong proof of the
low esteem in which woman was held both by State and Church. That a
priest could clear himself upon his own unsubstantiated oath is equally
significative of the respect in which this office was held, as well as
showing the degree in which all law was made to shield man and degrade
woman. When we find the oath of seven women required to nullify that
of one layman, we need no stronger testimony as to woman’s inequality
before the law. Canonists laid down the law for all matters of a
temporal nature whether civil or criminal. The buying and selling of
lands; leasing, mortgaging, contracts; the descent of inheritance; the
prosecution and punishment of murder; theft; detection of thieves;
frauds; those and many other objects of temporal jurisdiction were
provided for by Canon Law. It was intended that the clergy should come
entirely under its action, governed as a distinct people from the
laity. The principal efforts of the Canon Law towards which all its
enactments tended, was the subordination of woman[26] and the elevation
of the hierarchy. To secure these two ends the church did not hesitate
at forgery. For many hundred years a collection of Decretals, or what
were claimed as decrees of the early popes, carried great authority,
although later investigation has proven them forgeries.[27] Civil
as well as ecclesiastical laws were forged in the interest of the
priesthood; a noted instance, was the once famous law of Constantine
which endowed bishops with unlimited power, giving them jurisdiction in
all kinds of causes. This law declared that whatever is determined by
the judgment of bishops shall always be held as sacred and venerable,
and that in all kinds of causes whether they are tried according to the
pastoral or civil law that it is law to be forever observed by all.
The famous Seldon known as the “Light of England,” declares it to
have been “a prodigious and monstrous jurisdiction” assumed by the
priestly order, by means of falsehood and forgery.[28] The two classes
of temporal affairs that Spiritual Courts especially endeavored to
appropriate, were marriages, and wills, with everything bearing upon
them. In these the greatest oppression fell upon women.[29] Canon Law
gradually acquired enormous power through the control it gained over
wills, the guardianship of orphans, marriage, and divorce.[30] As soon
as ecclesiastical courts were divided from the temporal in England,[31]
a new set of principles and maxims began to prevail. This was one of
the first effects of the Conquest, but in 1272, Robert Kilmandy, Dean
of Canterbury, gave directions for the restoration and observation of
the ancient and neglected laws of Ecclesiastical Courts; of these the
Court of Arches was one of the most ancient. It is almost impossible to
fix the date of ecclesiastical rule, unless indeed we go back to the
very foundation of the church. As noted, the early Saxons were largely
governed by their priests. In 615, at the Paris synod, the clergy were
given authority in matters theretofore under civil power, while in
England we find priestly power to have been great during the fourth and
fifth centuries. Bracton sets the one hundred and fifty years between
the middle of the twelfth and end of the thirteenth centuries as the
period when this power took its greatest strides. At this time it
touched upon wills, inheritance, bequests, the legitimacy of children,
the marriage relation, and all family concerns, having broken over many
securities of the common law. This period covers the establishment of
celibacy with the trains of evils noted in the preceding chapter, when
the marriage of priests was declared invalid, their wives branded as
immoral persons, and stain of illegitimacy thrown upon their children.
Despite the guarantees of the Runnymede Charter, and the religious
rebellion of the Eighth Henry, despite the vigor of Elizabeth who bent
both priest and prelate to her fiery will, the influence of this period
moved down in line with the Reformation, and to the injury of woman,
successfully incorporated its worst features into the common law; the
new church, social and family life all partaking of this injustice.
A great number of canons were enacted after the reformation. These,
together with the foreign canons which had been adopted, were held
as part of the law of England.[32] The Episcopal church appropriated
numerous canons extant at the time of the reformation, several of these
having been created for the purpose of sustaining the church at a
period when the temporal power threatened encroachment. The archdeacon
of Surrey prepared a voluminous work upon this subject known as the
Jurus,[33] proving that these canons, decrees, etc., when falling into
disuse had been established by act of Parliament, as part of the law
of England. The preface of his work declared that it had been prepared
purely for the service of the clergy, and in support of the rights and
privileges of the Church. Thus we have direct proof of the adoption of
papal decrees as part of the government of the Protestant Episcopal
church,—the Anglican—and also as part of English law.
An act of Parliament at this age was regarded as synonymous with a law
of God. The Bible and the English government were upon the same plane,
each to be implicitly obeyed.[34] Canon Law thus firmly established
by act of Parliament, the union of Church and State complete, England
lost much of that civil freedom whose origin can be traced to the wise
legislation and love of freedom inhering in two British queens, Martia
and Boadicea. Suffering from cruel wrong, the latter rose in revolt
against the Romans. Riding among the squadrons of her army she thus
addressed them:
It will not be the first time, Britons, that you have been
victorious under the conduct of your queen. I come not here
as one of royal blood, to fight for empire or riches, but as
one of the common people to avenge the loss of their liberty,
the wrongs of myself and my children. If you Britons will but
consider the motives of our war, you will resolve to conquer
or die. Is it not much better to fall in the defense of
liberty than to be exposed to the outrages of the Romans? Such
at least is my resolution, you may if you please live and be
slaves.
But many historians date the entire subordination of the common law
to ecclesiasticism, to the reign of Stephen, who ascended to the
throne 1135, the fourth of the Anglo-Norman kings. In order to keep
the ranks of the church full, the bearing of children was enforced
upon women as a religious duty. No condition of health or distaste
for motherhood was admitted as exemption. Alike from the altar, the
confessional, and at the marital ceremony,[35] was this duty taught,
nor has such instruction even under the light of physiology and new
regard for personal rights, yet ceased.[36] No less is the unresisting
subjection of women in this relation indirectly or directly enforced by
the Protestant and the Greek churches as the law of the Bible and God.
“Increase and multiply”[37] has been the first commandment for woman,
held as far more binding upon her than the “Ten Words” of Mount Sinai.
Proof exists in abundance of a character impossible to present in this
work.
Under the general absence of learning and the equally general reverence
for whatever emanated from the church, minor ecclesiastics found
it in their power to promulgate doctrines to suit every new set of
circumstances; thus many laws aside from regularly promulgated canons,
came from time to time into force. When once applied they assumed all
the power of custom and soon bore all the force of common law. The
evils of ecclesiastical law were soon increased through the unsparing
use of forgery and falsehood. Lea says:
In the remodeling of European Institutions, so necessary to
the interests of Christianity and civilization, one of the
most efficient agencies was the collection of Canons known as
the False Decretals. Forgery was by no means a novel expedient
to the church. From the earliest times orthodox and heretics
had rivalled each other in the manufacture of whatever
documents were necessary to substantiate their respective
positions whether in faith or discipline. An examination
of these Decretals tends to the conclusion that they were
not the result of one effort or the work of one man. Their
constant repetitions and their frequent contradiction would
seem to prove this, and to show that they were manufactured
from time to time to meet the exigencies of the moment or to
gratify the feelings of the writers. Interpolated into codes
of law, adopted and amplified in the canons of councils and
the decretals of popes, they speedily became part of the
civil and ecclesiastical policy of Europe, leaving traces
on the constitutions which they afflicted for centuries....
The pretenses and privileges which they conferred on the
hierarchy became the most dearly prized and frequently quoted
portions of the Canon Law. In each struggle with the temporal
authority, it was the arsenal from which were drawn the most
effective weapons, and after each struggle the sacerdotal
combatants had higher vantage ground for the ensuing conflict
... theories of ecclesiastical superiority which left so
profound an impress on the middle ages and which have in no
slight degree molded our modern civilization.
Even Magna Charta strengthened Canon Law, confirming many liberties of
the Church, and injuring women by prohibiting appeal to them unless
for the death of their husbands. While the general tenor of the church
was against marriage, an unmarried woman unless dedicating her life
to the church was regarded with more contempt than the married. To be
under control of a husband was looked upon as the normal condition of
women not living celibate lives. Consequently women were driven into
marriage or monastic houses,[38] and no reproach so great as the term
“old maid.” The influence of custom is nowhere more discernible than
in Blackstone himself. The great commentator while fully admitting
the blending of Canon with Common law, also acknowledging its most
prejudicial effects to have fallen upon woman, yet attempts to prove
that the liberties of the English people were not infringed through
ecclesiasticism. He is so entirely permeated with the church doctrine
of woman’s created inferiority as not to be willing to acknowledge
the infringement of her natural liberty through it, although at the
same time he declares that “whosoever would fully understand the Canon
Law must study Common Law in respect to woman.” Such benumbing of the
moral faculties through her doctrines is among the greatest wrongs
perpetrated by the church upon mankind. Nor is it alone in regard to
woman. During the Franco-Prussian war a writer declared the great and
absolute need of the French people to be education; that of moral
character there was absolutely none, either in the higher or lower
classes. Even the sons of aristocratic families educated in Jesuit
schools, being at most taught that wrong can only be measured by a
formal religious standard, and that every wrong can be wiped out by
confession to the priest. French education, this writer declared to
be that of two centuries ago, when might was looked upon as identical
with justice. Nor can morality be taught while its basis in the church
remains the same.
The priestly profession held the most brilliant promises of gratified
ambition to every man that entered it. Not alone did he possess the
keys of heaven and hell, but also those of temporal power. The laity
were his obedient servants upon which he could impose penance and
from whose coffers wealth could be made to flow into his own. Through
long continued false teaching the people believed their fate in both
worlds more fully depended upon the priesthood than upon their own
course in life, God having deputed a share of his power to every
priest and monk, no matter how debased; and that when he spoke it was
not himself, but God, through his lips, as asserted by the priesthood
themselves. This impious assertion so capable as shown of being used
for the most tyrannous purposes, came also into the Reformation, and
is even heard from the lips of Protestant clergymen today.[39] Denied
recognition of a right to decide for themselves whether the priest
spoke from God, or from his own ambitious and iniquitous purposes,
deprived of education as well as of free thought—the latter a crime
to be punished with death after the most diabolical torture—it is not
a subject of surprise that the majority of the christian world was a
prey to the vilest superstition. The claim of infallibility, which may
be unsuccessfully combated when urged by a single individual, became
all-potent when advanced by a large powerfully organized and widely
distributed class under guise of religion, into which the element
of fear largely entered. No salvation outside of the church was a
fundamental doctrine of that body. Hell was declared not to be peopled
alone by the heathen, but by christian heretics, and the excommunicated
who had died without obtaining forgiveness from the Church. These were
depicted as in eternal torments of a more terrible character than
even those whom birth had left ignorant of the plan of salvation. The
strength of the church lay in its control of the conscience and the
will. Upon the State it fastened double bonds; first, by its control
of each individual member; second, in its capacity of secular ruler.
Long before the days of Torquemada and Ximenes, the Inquisition had
practically been brought to every man’s door. The imagination, that
faculty that in its perfection constitutes the happiness of mankind,
was made the implement of excessive mental torture.
Common Law as it exists today is the outgrowth of Ecclesiastical or
Canon Law touching upon all the relations of life but falling with
heaviest weight upon woman, as Blackstone so frankly admits.[40] From
the X to the XVI centuries is the period when the features of the
Canon Law most derogatory to woman became thoroughly incorporated into
English common law, since which period the complete inferiority and
subordination of woman has been as fully maintained by the State as by
the Church.
Common Law is not alone English law, it is the basic law of the
United States. Chancellor Kent said of it, “Common Law is part of the
fundamental law of the United States.” It has been recognized and
adopted as one entire system by the constitutions of Massachusetts,
New York, New Jersey and Maryland. It has been assumed by courts of
justice, or declared by statute, as the law of the land in every State,
although its influence upon the criminal codes of England and the
United States has but recently attracted the attention of legal minds.
Wharton whose _Criminal Law_ has been for years a standard work, did
not examine this relation until its seventh edition. In the preface to
this edition he gave a copious array of authors in English, German,
Latin, in proof that the criminal codes of those two countries are
permanently based upon Ecclesiastical Law.