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:
[364] French customary law began to be written in the thirteenth century
and was greatly affected by the Roman law.
[365] The succeeding paragraphs are a summary of the account by the
learned Professor Mackeldey, who has investigated Roman law with the
most minute diligence.