Woman, Church & State. Matilda Joslyn Gage
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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.
An early council of Carthage thus ordained: “Let not a woman however learned or holy presume to teach a man in a public assembly.” To this Canon may be ascribed the obstacles thrown in the way of women even during the present century, who have come before the world as public teachers in the pulpit, at the bar, in medicine, or the more customary branches of instruction. Advancing civilization of the present century is still hampered by the laws of an imperfect church, enacted many hundred years since. The trial of Mistress Anne Hutchinson in New England, during the XVII century, was chiefly for the sin of having taught men.
All modern legislation can be referred to the church for its origin although most especially noticeable in reference to women legislated for as a class, distinct and separate from men. Under Church laws, the humble, the ignorant, the helpless have been the most oppressed, because of their powerlessness, but upon no part of humanity has this oppression so heavily fallen as upon her whom the church has declared to be the author of all the misery of human life.[41] The laws of bastardy and illegitimacy still extant in Christian countries which decree that a child born outside of marriage shall be known by its mother’s name and she alone responsible for its support, and which do not allow it to inherit its putative father’s property even when he acknowledges the child as his own, are of ecclesiastical origin. Enacted by the Church in its most powerful days, as protection to a celibate priesthood against all claim by mother or child, they are still a reminder of the Matriarchate when the sole right of the mother to the child was unquestioned. But under Church ruling this law that the child should follow the condition of the mother, herself but a slave, was the source of great injustice both to women and to thousands of innocent children. Under feudalism and during slavery the child of the feudal lord or powerful master by a serf woman, became at birth subject to all the restrictions of the mother while the father was freed from accountability of any nature. The Antonelli case referred to in the second chapter, in which the Countess Lambertini claimed heirship of Cardinal Antonelli’s property as his daughter, was decided against her not upon denial of her paternity which was most fully proven, but because under church law this daughter had no claim upon her priestly father. Under Canon Law she was no more to be regarded as his child than as the child of any other man. She was “fatherless.” She was “a sacrilegious child” having violated sacred things by coming into existence. Her “holy” father under Canon Law was entirely irresponsible for her birth.[42]
The reformation proved itself in many ways as restrictive towards woman as Catholicism. The commencement of modern law dates to the reign of Elizabeth, who established the reformation upon a firm basis. The oppression of her reign exceeded all that had been experienced under Catholicism. No cottager in England was permitted to shelter his homeless mother or sister under penalty[43] because she was “masterless.” The greatest amount of legislation both religious and secular under the Patriarchate has had woman for its object, and this is especially noticeable in all countries where Christianity has been the dominant power, because she has not been regarded by the church as a component part of humanity, but as an offshoot whose rights and responsibility were entirely different from those of man. Although among the Anglo-Saxons the priesthood possessed great influence yet after the Norman Conquest ecclesiasticism gained much greater control in England, and Canon Law began to influence legislation, as has been shown, exercising its chief restrictive force upon woman. While under old Common Law,[44] a husband was compelled to leave his wife one-third of his property and could leave her as much more as he pleased, by Canon Law he was prohibited from leaving her more than one-third and could leave her as much less as he pleased. Thus ecclesiasticism presumed to control a husband’s affections and placing its slimy fingers upon common law, allowed the husband to leave his wife in absolute poverty, notwithstanding that her property upon marriage, and her services under marriage, belonged exclusively to him. As early as the twelfth century, Glanville laid it down as a law of the British Kingdom that no one was compelled to leave another person any portion of his property, and that the part usually devised to wives was left them at the dictate of affection and not of law. Thus early did the Church in England override Common Law to the detriment of woman. While thus legislating in opposition to family rights, the church continually favored its own increase of its own property.[45] The world has produced no system so thoroughly calculated to extend its own power and wealth, as this vast celibate organization which, under the guise of religion, appealed to man’s superstition, and ruled his will under the assumption of divine authority, the family being its chief objective point of attack.
While under feudalism his lord was to receive the best gift at the villein’s death, the church the second best, in time the demands of the church overpowered those of the lord, as well as those of the family. So rapacious did the church at last become in its demand for valuable gifts and its claim of one third of a man’s property upon his decease, that the civil law ultimately interfered, not however in the interests of wives, but of creditors. Canon Law nearly everywhere prevailed, having its largest growth through the pious fiction of woman’s created inferiority. Wherever it became the basis of legislation, the laws of succession and inheritance, and those in regard to children, constantly sacrificed the interests of wives and daughters to those of husbands and sons. Church legislation created numerous and stringent enactments which rendered it impossible for woman to succeed to any considerable amount of property, forcing her to entire dependence upon man, either as a wife, or as a resident of a religious house; thus she entirely lost the freedom possessed by her in pagan Rome.[46]
While under Canon Law the dower of the wife was forfeited by attainder of the husband, yet the husband did not lose his right to the wife’s property in case she was attainted of treason. Under Canon Law if for recognized just cause of the husband’s cruelty the wife separated from him, she was returned upon his demand provided he gave security for treating her well.
Canon Law gave to the husband the power of compelling the wife’s return if, for any cause, she left him. She was then at once in the position of an outlaw, branded as a runaway who had left her master’s service, a wife who had left “bed and board” without consent, and whom all persons were forbidden “to harbor” or shelter “under penalty of the law.” The absconding wife was in the position of an excommunicate from the Catholic Church, or of a woman condemned as a witch. Any person befriending her was held accessory to the wife’s theft of herself from her husband, and rendered liable to fine and other punishment for having helped to rob the husband (master) of his wife (slave). The present formula of advertising a wife, which so frequently disgraces the press, is due to this belief in wife-ownership.
Whereas my wife ... has left my bed and board without just cause or provocation, I hereby forbid all persons from harboring or trusting her on my account.
By old English law, in case the wife was in danger of perishing in a storm, it was allowable “to harbor” and shelter her. It is less than fifty years since the dockets of a court in New York city, the great metropolis of the United States, were sullied by the suit of a husband against parties who had received, “harbored” and sheltered his wife after she left him, the husband recovering a0,000 damages.
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