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.203 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.204 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.205
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 penalty206 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,207 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.208 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 СКАЧАТЬ
202
In a sermon laudatory of the preacher’s office, delivered in the May Memorial Unitarian Church, in Syracuse, N.Y., Sunday, Nov. 27, 1887, Rev. Mr. Calthrop, the pastor, said: “Noble words are your chief weapons of offense and defense. But remember it is not you that speak when you utter them, but the Holy Ghost.” From
203
Whoever wishes to gain insight into that great institution, Common Law, can do so most efficiently by studying Canon Law in regard to married women.
204
Distinction of class appears most prominently in all the criminal laws for which the clergy are responsible. It was for the man of low estate, the slave, and for women, that the greatest atrocities were reserved. If the thief was a free woman she was to be thrown down a precipice or drowned (a precedent without doubt for dragging a witch through a pond). If the thief was a female slave, and had stolen from any but her own lord, eighty female slaves were to attend, each bearing a log of wood to pile the fire and burn the offender to death. Pike. —
205
A correspondent of “The London Times” writes from Rome that he has not heard a single doubt expressed as to the paternity of the Countess Lambertini, and the line adopted by the Antonelli heirs tacitly confirms it. They strenuously oppose the production of any of the evidence the plaintiff has offered. They object to the depositions of the witnesses being heard and tested, and they have declared their intention of impugning as forgeries the documentary proofs tendered. These documents consist of some letters written by Antonietta Marconi to the Archpriest Vendetta, and particularly one dated April 1, 1857, wherein, asking him to prepare a draught of a letter to the Cardinal, she says that “Giacomo” does not send her money, although he knows that he has a daughter to support, and that Loretina is a cause of great expense. “Write to him forcibly,” she says, “or I shall do something disagreeable.” The extent of the scandal in Rome does not consist so much in the fact of a Cardinal in Antonelli’s position having had one or more children, as in the law-suit which has brought all the intimate details connected with the affair before the public. Antonelli was to all intents and purposes a layman, filling one of those civil departments of an ecclesiastical temporal Government to qualify for which it was indispensably requisite to assume the ecclesiastical habit. He accepted early in life those obligations without which no career would have been open to him, and, like many others, he regarded them as mere matters of form, for under the imperturbable mask of the ecclesiastical diplomat beat a heart filled with the warmest domestic affections and instincts; and how strong those feelings were in him was fully demonstrated in his will, and is clearly shown in every incident of the story now revealed.
Dame Gervasi has been subjected to a rigid cross-examination by the counsel of the brothers Antonelli. The proceedings were conducted with closed doors, but a Roman correspondent of “The Daily News” seems in some manner to have wormed out the essential facts. When the mysterious “foreign young lady” went to lodge at Dame Gervasi’s, Cardinal Antonelli – so the gossip runs – paid several visits to his protege. “I remember,” says the Dame, “that when I went to open the door to them I held in my hand a bowl of beef tea, which I was taking to the patient. Dr. Lucchini was the first to enter, and I soon recognized the second visitor to be Cardinal Antonelli, who wore a long redingote and a tall hat. He took the bowl, which I held in my hand. ‘This is for the patient,’ he said inquiringly, but before I had time to reply he had swallowed part of its contents.” Dame Gervasi then proceeded to relate how Dr. Lucchini left the Cardinal alone with the foreign young lady. The witness put her ear to the keyhole, and heard distinctly the sound of kisses alternating, with sobs between the two. His Eminence, to console the patient, told her he had taken every precaution against the matter becoming known. “Don’t be afraid,” he said, “nobody will be a bit the wiser. You will be able to marry. As for the baby, that’s my affair. I will take care of her, and I swear to you that she will never know the name of her mother.” Dame Gervasi gave the names of the persons who had come to her on behalf of the brothers Antonelli, and these emissaries, she said, tried to make her disclose all she knew, and promised her large sums of money to bind her to silence as to the clandestine part played by Signora Marconi, and as to the Cardinal’s relations with the “foreign lady.” —
206
See Reeves. —
207
The foundation of old common law seems traceable to Martia, the widow of Guilliame, left regent of her husband’s kingdom, comprising a part of Britain, two hundred years prior to the christian era. This queen directed her attention to framing a system of laws which acquired for her the surname of “Proba,” or “The Just.” They were evidently one of the three parts under which the common law is divided, although under canon law the entire property of the wife became that of the husband upon marriage.
208
In England, in 1538, or even earlier, it was calculated that besides the tithes, one-third of the kingdom was ecclesiastical property, and that these vast possessions were devoted to the support of a body of men who found their whole serious occupation in destroying the virtue of women. Lea. —