THE CANON LAW AND THE ATTITUDE OF THE ROMAN CATHOLIC
CHURCH
[Sidenote: The canon law reaffirms the subjection of women.]
The canon law reaffirms woman's subjection to man in no uncertain terms.
The wife must be submissive and obedient to her husband.[366] She must
never, under penalty of excommunication, cut off her hair, because "God
has given it to her as a veil and as a sign of her subjection."[367] A
woman who assumed men's garments was accursed[368]; it will be
remembered that the breaking of this law was one of the charges which
brought Joan of Arc to the stake. However learned and holy, woman must
never presume to teach men publicly.[369] She was not allowed to bring a
criminal action except in cases of high treason or to avenge the death
of near relatives.[370] Parents could dedicate a daughter to God while
she was yet an infant; and this parental vow bound her to the nunnery
when she was mature, whether she was willing or not.[371] Virgins or
widows who had once consecrated themselves to God might not marry under
pain of excommunication.[372] Parents could not prevent a daughter from
taking vows, if she so wished, after she had attained the age of
twelve.[373]
[Sidenote: Woman and marriage under canon law.]
The most important effect of the canon law was on marriage, which was
now a sacrament and had its sanction not in the laws of men, but in the
express decrees of God. Hence even engagements acquired a sacred
character unknown to the Roman law; and when a betrothal had once been
entered into, it could be broken only in case one or both of the
contracting parties desired to enter a monastery.[374]
Free consent of
both man and woman was necessary for matrimony.[375]
There must also be
a dowry and a public ceremony.[376] The legitimate wife is thus
defined[377]: "A chaste virgin, betrothed in chastity, dowered according
to law, given to her betrothed by her parents, and received from the
hands of the bridesmaids (_a paranimphis accipienda_); she is to be
taken according to the laws and the Gospel and the marriage ceremony
must be public; all the days of her life--unless by consent for brief
periods to devote to worship--she is never to be separated from her
husband; for the cause of adultery she is to be dismissed, but while she
lives her husband may marry no other." The blessing of the priest was
necessary. About every form connected with the marriage service the
Church threw its halo of mystery and symbol to emphasise the sacred
character of the union. Thus[378]: "Women are veiled during the marriage
ceremony for this reason, that they may know they are lowly and in
subjection to their husbands.... A ring is given by the bridegroom to
his betrothed either as a sign of mutual love or rather that their
hearts may be bound together by this pledge. For this reason, too, the
ring is worn on the fourth finger, because there is a certain vein in
that finger which they say reaches to the heart."
[Sidenote: Clandestine marriages.]
Clandestine marriages were forbidden,[379] but the Church always
presumed everything it could in favour of marriage and its
indissolubility. Thus, Gratian remarks[380]:
"Clandestine marriages are,
to be sure, contrary to law; nevertheless, they can not be dissolved."
The reason for forbidding them was perfectly reasonable: one party might
change his or her mind and there would be no positive proof that a
marriage had taken place, so that a grave injury might be inflicted on
an innocent partner by an unscrupulous one who desired to dissolve the
union.[381] Yet the marriage by consent alone without any of the
ceremonies or the blessing of the priest was perfectly valid, though not
"according to law" (_legitimum_), and could not be dissolved.[382] Not
until the great Council of Trent in 1563 was this changed. At that time
all marriages were declared invalid unless they had been contracted in
the presence of a priest and two or three witnesses.[383]
[Sidenote: Protection to women.]
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]
[Sidenote: Divorce.]
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."
[Sidenote: Inheritance]
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]
[Sidenote: General attitude towards women at the present day]
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."
Cardinal Gibbons, in a letter to the National League for the Civic
Education of Women--an anti-suffrage organisation--said that "woman
suffrage, if realised, would be the death-blow of domestic life and
happiness" (Nov. 2, 1909).
Rev. William Humphrey, S.J., in his _Christian Marriage_, chap. 16,
remarks that woman is "the subordinate equal of man"--
whatever that
means.
A few Roman Catholic prelates, like Cardinal Moran, have advocated equal
suffrage, but they are in the minority. The Pope has not yet definitely
stated the position of the Church; individual Catholics are free to take
any side they wish, as it is not a matter of faith; but the tendency of
Roman Catholicism is against votes for women.
SOURCES
I. Corpus Iuris Canonici: recognovit Aemilius Friedberg.
Lipsiae
(Tauchnitz) Pars Prior, 1879. Pars Secunda, 1881.
II. Sacrosanctum Concilium Tridentinum, additis Declarationibus
Cardinalium, Concilii Interpretum, ex ultima recognitione Joannis
Gallemart, etc. Coloniae Agrippinae, apud Franciscum Metternich,
Bibliopolam. MDCCXXVII.
III. The Catholic Encyclopedia. New York, Robert Appleton Company.
(Published with the _Imprimatur_ of Archbishop Parley.) IV. Various articles by Catholic prelates, due references to which are
given as they occur.
NOTES:
[366] Augustine quoted by Gratian, _Causa_, 33, _Quaest_. 5, chapters
12-16--Friedberg, i, pp. 1254, 1255. Ambrose and Jerome on the same
matter, ibid., _c_. 15 and 17, Friedberg, i, p. 1255.
Gratian, _Causa_
30, _Quaest_. 5, _c_. 7--Friedberg, i, p. 1106: Feminae dum maritantur,
ideo velantur, ut noverint se semper viris suis subditas esse et
humiles.
[367] Gratian, _Distinctio_, 30, _c_. 2--Friedberg, i, p. 107: Quecumque
mulier, religioni iudicans convenire, comam sibi amputaverit quam Deus
ad velamen eius et ad memoriam subiectionis illi dedit, tanquam
resolvens ius subiectionis, anathema sit. Cf. Gratian, _Causa_, 15,
_Quaest_. 3--Friedberg, i, p. 750.
[368] Gratian, _Dist_., 30, _c_. 6, Friedberg, i, p.
108. See also
_Deuteronomy_ xxii, 5.
[369] Gratian, _Dist_., 23, _c_. 29--Friedberg, i, p.
86: Mulier,
quamvis docta et sancta, viros in conventu docere non praesumat.
[370] Id., _Causa_, 15, _Quaest_. 3--Friedberg, i, p.
750.
[371] Id., _Causa_, 20, _Quaest_. 1, _c_. 2--Friedberg, i, pp. 843-844,
quoting Gregory to Augustine, the Bishop of the Angles: Addidistis
adhuc, quod si pater vel mater filium filiamve intra septa monasterii in
infantiae annis sub regulari tradiderunt disciplina, utrum liceat eis,
postquam ad pubertatis inoleverint annos, egredi, et matrimonio
copulari. Hoe omnino devitamus, quia nefas est ut oblatis a parentibus
Deo filiis voluptatis frena relaxentur. Id., _c_. 4--
Fried., i, p. 844:
quoting Isidore--quicumque a parentibus propriis in monasterio fuerit
delegatus, noverit se ibi perpetuo mansurum. Nam Anna Samuel puerum suum
natum et ablactatum Deo pietate obtulit. Id., _c_. 7--
Fried., i, pp.
844-845.
[372] Gratian, _Dist_., 27, _c_. 4 et 9, and _Dist_., 28, _c_.
12--Friedberg, i, pp. 99 and 104. Id., _Causa_, 27, _Quaest_. 1, _c_. 1
and 7--Friedberg, i, pp. 1047 and 1O50.
[373] Gratian, _Causa_, 20, _Quaest_. 2, _c_. 2--
Friedberg, i, pp.
847-848.
[374] Cf. Council of Trent, Session 24, "On the Sacrament of Matrimony,"
_Canon_ 6: "If anyone shall say that matrimony contracted but not
consummated is not dissolved by the solemn profession of religion by one
of the parties married: let him be anathema."
Gratian, _Causa_, 27, _Quaest_. ii, _c_. 28--Fried., i, p. 1071. Id.,
_c_. 46, 47, 50, 51--Fried., i, pp. 1076, 1077, 1078.
[375] Gratian, _Causa_, 30, _Quaest_. 2--Fried., i, p.
1100: Ubi non est
consensus utriusque, non est coniugium. Ergo qui pueris dant puellas in
cunabulis et e converso, nihil faciunt, nisi uterque puerorum postquam
venerit ad tempus discretionis consentiat, etiamsi pater et mater hoc
fecerint et voluerint. Id. _Causa_, 31, _Quaest_. 2--
Fried., i,
1112-1114: sine libera voluntate nulla est copulanda alicui.
[376] Gratian, _Causa_, 30, _Quaest_. 5, _c_. 6--
Friedberg, i, p. 1106:
Nullum sine dote fiat coniugium; iuxta possibilitatem fiat dos, nee sine
publicis nuptiis quisquam nubere vel uxorem ducere praesumat.
[377] Gratian, _Causa_, 30, _Quaest_. 5, _c_. 4--
Friedberg, i, p. 1105.
[378] Gratian, _Causa_, 30, _Quaest_. 5, _c_. 7--
Friedberg, i, p. 1106.
[379] Id., _c_. 1--Friedberg, i, p. 1104.
[380] Id., _c_. 8--Friedberg, i, p. 1107.
[381] Gratian, _Causa_, 30, _Quaest_. 5, _c_. 9--
Friedberg, i, p. 1107.
[382] Gratian, _Causa, 28, _Quaest_. i, _c_. 17--
Friedberg, i, p. 1089:
illorum vero coniugia, qui contemptis omnibus illis solempnitatibus solo
affectu aliquam sibi in coniugem copulant, huiuscemodi coniugium non
legitimum, sed ratum tantummodo esse creditur.
[383] Sessio xxiv, cap. i--De Reformatione Matrimonii.
[384] See Gratian, _Dist_., v, _c_. 4--Friedberg, i, p.
8, e.g., ... ita
ut morte lex sacra feriat, si quis vir ad menstruam mulierem accedat.
[385] Gratian, _Dist_., 31, _c_. 11--Friedberg, i, p.
114.
[386] Gratian, _Causa_, 27, _Quaest_. 2, _c_. 18-22, and 24-26--Friedberg i, pp. 1067-1070.
[387] Gratian, _Dist_., 34, c. 4--Friedberg, i, p. 126.
Id., _Causa_,
29, _Quaest_. 1--Friedberg, i, p. 1092. Id., _Causa_, 29, _Quaest_. 2,
c. 2.
[388] Id., _Causa_, 29, _Quaest_. 2, c. 1 and 8.
[389] "Divorce," by James Cardinal Gibbons, in the _Century_, May, 1909.
[390] For this and what immediately follows see _Session_ 24 of the
Council of Trent "On the Sacrament of Matrimony" and also the Catholic
Encyclopedia under "Divorce."
[391] Gratian, _Causa_ 28, _Quaest_. i, c. 5--Friedberg, i, pp.
1080-1081. Licite dimittitur uxor que virum suum cogere querit ad malum.
Idolatria, quam secuntur infideles, et quelibet noxia superstitio
fornicatio est. Dominus autem permisit causa fornicationis uxorem
dimitti. Sed quia dimisit et non iussit, dedit Apostolo locum monendi,
ut qui voluerit non dimittat uxorem infidelem, quo sic fortassis possit
fidelis fieri. Si infidelitas fornicatio est, et idolatria infidelitas,
et avaritia idolatria, non est dubitandum et avaritiam fornicationem
esse. Quis ergo iam quamlibet illicitam concupiscentiam potest recte a
fornicationis genere separate, si avaritia fornicatio est?
[392] Friedberg, ii, pp. 782 and 783: Quum enim secundum legitimas
sanctiones, etc.
Lea, in his _History of Confession and Indulgences_, ii, p. 87