Chapter Three
Canon Law
The earliest Saxon laws were almost entirely ecclesiastical,164 their basis seeming to have been payment of tithes to the Church and support of the pope through what was known as the “hearth penny” to St. Peter. Marriage was by no means allowed to escape general ecclesiastical control, its legitimacy being made to depend upon the sanction and services of a priest.165 This we learn from Reeves, whose authority is indisputable,166 therefore we discover that even long before marriage was constituted one of the sacraments, celibacy or the confessional established, the Church had perceived the great increase in its authority to be brought about by gaining control of the marriage ceremony and making its legitimacy depend upon the services of a priest. This was a material step towards the subjugation of mankind; one whose dire consequences have not yet received due consideration. When Rome became a Christian State, and the phallic cross triumphed over the gods and goddesses of old, the condition of woman under the civil law became more degraded. The change from ancient civilization to that renewed barbarism at an early age of the Christian era, which so many writers note without perceiving its cause, is to be found in the low conception of womanhood inculcated by the Church. Ignorance, superstition, falsehood and forgery united in creating new codes of law, new customs of society, new habits of thought, which, having for centuries been imposed upon mankind by the united force of the Church and the State, still continue their impress upon modern life and law.
Among general canons we find that “No woman may approach the altar.” “A woman may not baptize without extreme necessity.” “Woman may not receive the Eucharist under a black veil.” “Woman may not receive the Eucharist in morbo suo menstrule.”
At the Synod or Council of Elvira,167 305 or 306, several restrictive canons were formulated against woman. Under Canon 81, she was forbidden to write in her own name to lay christians, but only in the name of her husband. Women were not to receive letters of friendship from any one addressed only to themselves.
From the commencement of the fifth century, the Christian clergy acquired a powerful influence in Rome. Bishops and priests were the municipal magistrates of the Roman Empire, of which little now remained except its municipal government; thus the Church in reality became Rome, and Rome the Church. It has been declared difficult to fix with precision the period at which ecclesiastics first began to claim exemption from civil jurisdiction. The Synod of Paris, 615, seems to have secured to the clergy the privilege of being brought before mixed tribunals in all cases which had theretofore belonged to the civil judge alone. Bishops acquired greater power from having an oversight over the whole administration of justice committed to them, while their spiritual judgments were rendered more effective by the addition of excommunication to civil punishments. The State, at first holding repression over the Church, added to its powers by relieving the clergy from all civil duties,168 thus tending to make of them a body exterior to the civil government. This division was farther increased through the emperors giving confirmation to the decisions pronounced by bishops in ecclesiastical affairs, and also when they were chosen umpires in civil suits; the tendency of this action was towards the creation of an ecclesiastical law with separate powers from the civil law. Another step towards the separation of civil from ecclesiastical law and the supremacy of the latter, was made when in cases of discipline the clergy were allowed to come under the authority and supervision of the Spiritual Courts.169
As soon as Christianity became the religion of the State, this power was still farther increased by the permission accorded ecclesiastics to accept gifts, inherit and hold property; the purity of clerical motives being thereby greatly lessened, as covetous and unscrupulous persons were forthwith attracted to this profession. The law of tithes was introduced by Charlemagne, and his edicts largely increased clerical power. The compilation of a Code of Canon Law was begun as early as the ninth century,170 by which period the olden acknowledged rights of the clergy, those of superintending morals and interference on behalf of the unfortunate, had largely been lost sight of, or diverted from their proper course by a system of ecclesiastical tyranny which created an order of morals, whose sole design was that of building up priestly power.
The complete inferiority and subordination of the female sex was maintained both by civil and common law. It was a principle of common law that sons should be admitted to an inheritance before daughters.171 This distinction created by the Church in the interests of the class which was alone admitted to the priesthood, thus placing the possession of wealth in the hands of man, did much towards keeping woman in a subordinate condition. In accordance with natural law, the person not owning property is less interested in the welfare of the State than the one possessing it, a denial of the rights of ownership acting prejudicially upon the individual.
Ecclesiastical or Canon Law172 made its greatest encroachments at the period when Chivalry173 was at its height; the outward show of respect and honor to woman under chivalry keeping pace in its false pretence with the destruction of her legal rights. The general conception in regard to woman was so degraded at this period that a “Community of Women” was proposed, to whom all men should act in the relation of husbands.174 This plan was advocated by Jean de Meung, the “Poet of Chivalry,” in his famous Roman de la Rose. Christine of Pisa, a woman of learning and remarkable force of character, the first strictly literary woman of western Europe, wrote a work in defense of her sex against the general libidinous character of the age.175 Her opposition to the debasing theories of the “Romance” marks the later period of woman’s entrance into literature, and is an era from which dates the modern intellectual development of Europe.176 Efforts to utterly crush the moral rectitude of women through the adoption of those base ideas of phallic origin, having been the systematic course of the Church, the State and society through many hundred years, it is a most notable proof of her innate disbelief in this teaching, that woman’s first literary work of modern times was written in opposition to such a powerfully sustained theory as to her innate depravity. Christine asserted the common humanity of woman, entirely repudiating the sensual ideas of the times.
To the credit of mankind it must be recorded that the laity did not 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.177 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.178 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.179 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,180 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.181 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.182 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.183 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.184 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.185 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.186 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.187 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.188 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 woman189 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.190 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.191 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.192 Canon Law gradually acquired enormous power through the control it gained over wills, the guardianship of orphans, marriage, and divorce.193 As soon as ecclesiastical courts were divided from the temporal in England,194 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.195 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,196 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.197 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,198 was this duty taught, nor has such instruction even under the light of physiology and new regard for personal rights, yet ceased.199 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”200 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,201 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.202 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.