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, 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, 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.