CHAPTER THREE

[1] Maine says the bodies of customary law which were built up over Europe were in all matters of first principles under ecclesiastical influence, but the particular application of a principle once accepted were extremely various.

[2] The Council held at Winchester in time of Archbishop Le Franc contained a constitution that a marriage without the benediction of a priest should not be deemed a legitimate marriage. Ecclesiastical law as allowed in this country (Great Britain), from earliest times the presence of a priest was required to constitute a legal marriage. Reeves.—_History of English Law._

[3] Reeves History of English Law is a full and comprehensive history of the English Law, accurate and judicious as well as full. Lord Mansfield is said to have advised its author. In this work the student is presented with all that is necessary that he should know of the earliest law books. Bracton, Glanville and Fleta carefully collected and presented. Reeves History of English Law, says Chancellor Kent, contains the best account that we have of the progress of the law from the time of the Saxons to the reign of Elizabeth. Sherwood.—_Professional Ethics._

[4] Hefele’s, _Acts of Councils_.

[5] Church and priestly property is still untaxed in the United States. At an early day the clergy were not required to sit on juries nor permitted to cast a vote.

[6] Giessler, _Ecclesiastical History_.

[7] Doctrines in the Canon Law most favorable to the power of the clergy are founded in ignorance, or supported by fraud and forgery, of which a full account is found in Gerard. See _Mem. de l’Acad. des Inscript._, Tom 18, p. 46. Also Voltaire’s essay upon general history.

[8] “Whenever Canon Law has been the basis of legislation, we find the laws of succession sacrificing the interests of daughters and wives.” “Du Cange, in his Glossary, _voc Casia Christianitatis_, has collected most of the causes with respect to which the clergy arrogated an exclusive jurisdiction, and Giannone, in the _Civil History of Naples_, lib. 19, sec. 3, has arranged these under proper heads scrutinizing the pretensions of the church.”

[9] “Canons were made from time to time to supply the defects of the common law of the church; so were statutes added to enforce both Common and Canon Law. The greater part of the statutes made before the Reformation, which concerns the church and clergy, are directly leveled against violence committed against the possession of persons by the minister or the king, and against the encroachments of the Temporal Courts upon the spiritual jurisdiction.”

[10] “Phantastic romanticists and calculating persons have endeavored to represent this period as the age of morality and sincere reverence for woman.... The ‘Service of Love’ preached by French, German, and Italian knights, was supposed to prove the high respect paid to the women of that day. On the contrary, this period succeeded in destroying the little respect for the female sex which existed at its commencement. The knights both in town and country were mostly coarse, licentious men.... The chronicles of the times swarm with tales of rape and violence on the part of nobles in the country, and still more in the towns where they were exclusive rulers up to the XIII. and XIV. centuries, while those subjected to this degraded treatment were powerless to obtain redress. In the towns the nobles sat on the magistrates bench, and in the country criminal jurisdiction was in the hands of the lord of the manor, squire or bishop.”

[11] The first article of the famous Code of Love was “Marriage is not a legitimate excuse against love.”

[12] This was Christine’s first work. Her success was so great that she supported a family of six persons by her pen.

[13] Wright. _Womankind in Europe._

[14] “The Fathers seem to have thought dissolution of marriage was not lawful on account of the adultery of the husband, but that it was not absolutely unlawful for a husband whose wife had committed adultery to re-marry.”

[15] The preference of males over females in succession was totally unknown to the laws of Rome. Brothers and sisters were entitled to equal parts of the inheritance. Blackstone.—_Commentaries._

[16] No marriage could take place after 12 M., which is even now the rule of the English Established Church. The decrees of the Plenary Council, Baltimore 1884, tend to the establishment of similar regulations in our own country.

[17] The New Testaments of sixty years since, contained a list of relatives commencing with grandfather and grandmother, whom a man and woman might not marry.

[18] The policy of the church was to persuade mankind that the cohabitation of a man and woman was in itself unholy, and that nothing but a religious bond or sacrament could render it inoffensive in the eyes of God. Pike.—_History of Crime in England_, I, 90.

[19] This law held good in Protestant England until within the last decade.

[20] The church visited its penalties upon the innocent as well as guilty; when any man remained under excommunication two months, his wife and children were interdicted and deprived of all doctrines of the church but baptism and repentance. Lea.—_Studies in Church History._

[21] In England, until the reign of William and Mary, women were refused the benefit of clergy.

[22] In the hands of such able politicians it (marriage), soon became an engine of great importance to the papal scheme of an universal monarchy over Christendom. The innumerable canonical impediments that were invented and occasionally dispensed with by the Holy See, not only enriched the coffers of the church, but give it a vast ascendant over persons of all denominations, whose marriages were sanctioned or repudiated, their issue legitimated or bastardized ... according to the humor or interest of the reigning pontiff.—_Commentaries_ 3, 92.

[23] The word Liber, free, the solar _Phre_ of Egypt, and Liber, a book, being as has been shown, closely connected, the bookish men of Bac, Boc, Bacchus, were comparatively free from the rule of the warrior class, both in civil and military point of view, and thence arises our _benefit of clergy_. If the benefit of clergy depends upon a statute, it had probably been obtained by the priests to put their privilege out of doubt. It has been a declaratory statute, although, perhaps, every man who was initiated could not read and write, yet I believe every man who could read and write was initiated, these arts being taught to the initiated only in very early times. It has been said that the privilege of clergy was granted to encourage learning. I believe it was used as a test, as a proof that a man was of, or immediately belonging to, the sacred tribe, and therefore exempt from the jurisdiction of the court in which he had been tried. If he were accused he said nothing; if found guilty he pleaded his orders and his reading. I have little doubt that the knowledge of reading and letters were a masonic secret for many generations, and that it formed part of the mysterious knowledge of Eleusis and other temples.—_Anacalypsis_, 2, 271-2.

[24] Woman was represented as the door of hell, as the mother of all human ills. She should be ashamed of the very thought that she is a woman. She should live in continual penance on account of the curses she had brought upon the world. She should be ashamed of her dress, for it is the memorial of her fall. She should especially be ashamed of her beauty, for it is the most potent instrument of the demon.... Women were even forbidden by a provincial council, in the sixth century, on account of their impurity, to receive the eucharist in their naked hands. Their essentially subordinate position was continually maintained. Lecky.—_Hist. European Morals._

[25] No woman can witness a will in the State of Louisiana today.

[26] Blackstone says whosoever wishes to form a correct idea of Canon Law can do so by examining it in regard to married women.—_Commentaries._

[27] Blondell, a learned Protestant who died in 1659, fully proved Isidore’s collection of the Decretal Epistles of the popes of the first three centuries, to be all forged and a shameless imposture, _says Collier_.

[28] The famous law of Constantine, attached to the Theodosian Code, by virtue of which a prodigious and monstrous jurisdiction was formerly attributed to bishops, or to the hieratic order, though in reality that law was never a part of the aforesaid code, at the end of which it is found. Seldon.—_Dissertation on Fleta_, p. 101.

At time of Valentinian neither bishops nor the Consistories could, without the consent of the contracting lay parties, take cognizance of their causes.... Because, says that emperor, it is evident that bishops and priests have no court to determine the laws in, neither can they according to the imperial constitutions of Arcadius and Honorius, as is manifest from the Theodosian body, judge of any other matters than those relating to religion. Thus the aforesaid Emperor Valentinian. Neither do I think that the above sanction as extravagant, obtained a place at the end of the Theodosian Code, or was under the title of Episcopis, by any other manner posted into my manuscript, than by the frauds and deceits, constantly, under various pretenses, made use of by the hieratical orders, who endeavored to shape right or wrong, according to the custom of those ages, not to mention others, sovereign princes and republics of their authority and legal power, by this means under the cloak of religion, its constant pretext, most strenuously serving their own ends and ambition.—_Ibid_, 107.

[29] See Reeves.—_History of English Law._

[30] Draper.—_Conflict of Science and Religion._

[31] Reeves.

[32] Declaration of judges in the famous case of Evans and Ascuith. Vaughn said in a later case of the same kind, “If Canon Law be made part of the law of this land, then it is as much a law of the land and as well, and by the same authority as any other part of the law of the land.”

[33] Gibson was archdeacon of Surrey, Rector of Lambeth, and Chaplain of his Grace the Lord Archbishop of Canterbury (Primate of all England and Metropolitan) to whom the Jurus was dedicated. The work said: “The foreign is what we commonly call the body of Canon Law, consisting of the Canons of Councils, Decrees of Popes and the like, which obtained in England by virtue of their own authority (in like manner as they did in other parts of the Western Church), till the time of the Reformation, and from that time have continued upon the foot of consent, usage and custom. For which distinction we have no less warrant than an act of Parliament, made at the very time when those foreign laws were declared to be no longer binding by their own authority.... We have a plain declaration that foreign laws became part of the law of England by long use and consent.” Gibson.—_Codex Jurus Ecclesiasticum Anglican._

[34] English _Common Law Reports_, Hill vs. Gould, _Vaughn_, p. 327, says: “What ever is declared by an Act of Parliament to be against God’s law must be so admitted by us, because it is so declared by an Act of Parliament.”

[35] Under Catholic form the bride promises to consecrate her body to the marital rite.

[36] Chiniquy.—_The Priest, the Woman and the Confessional._

[37] “The clergy formerly, and to this very day, declare those women evil who desire to limit self-indulgence and procreation.”

[38] See Lecky.—_Hist. European Morals._

[39] 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 _Report of Sermon_, published in the “Daily Standard,” November 28th.

[40] 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. _Commentaries._

[41] 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.—_Hist. of Crime in England_, 49-51.

[42] 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.”—_N.Y. Tribune, July 5, 1878._

[43] See Reeves.—_Early English Law._

[44] _Hollingshed’s Chronicles._

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.

[45] 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.—_Sacerdotal Celibacy._

[46] The pagan laws during the Empire had been continually repealing the old disabilities of women; and the legislative movement in their favor continued with unabated force from Constantine to Justinian, and appeared also in some of the early laws of the barbarians. But, in the whole feudal legislation, women were placed in a much lower legal position than in the Pagan Empire. In addition to the personal restrictions which grew necessarily out of the Catholic Christian doctrines concerning divorce, and the subordination of the weaker sex, we find numerous and stringent enactments, which rendered it impossible for women to succeed to any considerable amount of property, and which almost reduced them to the alternative of marriage or a nunnery. The complete inferiority of the sex was continually maintained by law; and that generous public opinion which in Rome had frequently revolted against the injustice done to girls, in depriving them of the greater part of the inheritance of their fathers, totally disappeared. Wherever the canon law has been the basis of legislation, we find laws of succession sacrificing the interests of daughters and of wives, and a state of public opinion which has been formed and regulated by these laws; nor was any serious attempt made to abolish them till the close of the last century. The French Revolutionists, though rejecting the proposal of Sieyes and Condorcet to accord political emancipation to women, established at least an equal succession of sons and daughters, and thus initiated a great reformation of both law and opinion, which sooner or later must traverse the world. Lecky.—_Hist. Morals_, Vol. II, pp. 357-359.

[47] Sheldon Amos.—_Science of Law._

[48] _Ibid._

[49] Our laws are based on the all-sufficiency of man’s rights. Society exists for man only; for women merely as they are represented by some man; are in the _mundt_ or keeping of some man.—_Descriptive Sociology of England._

[50] This slavish condition of the wife yet prevails in over one-half the states of the union.

[51] The relations in respect to property which exist between husband and wife in England, is solely grounded on her not being assumed at common law to have sufficient command of her purse or of her future actions wherewith to procure the materials for making a contract. The legal presumption then is, that she did not intend to make one, and therefore the allegation that she did make a contract would simply on the face of it be a fraud. Amos.—_Science of Law._

[52] The jurisconsults had evidently at this time assumed the equality of the sexes as a principle to the code of equity. The situation of the Roman woman, whether married or single, became one of great personal and proprietary independence; but Christianity tended somewhat from the very first to narrow this remarkable liberty. The prevailing state of religious sentiment may explain why modern jurisprudence has adopted those rules concerning the position of woman, which belong peculiarly to an imperfect civilization. No society which preserves any tincture of Christian institutions is likely to restore to married women the personal liberty conferred on them by middle Roman law. Canon law has deeply injured civilization.—Sir Henry Maine.

[53] Under the Commonwealth, society assumed a new and stern aspect. Women were in disgrace; it was everywhere declared from the pulpit that woman caused man’s expulsion from Paradise, and ought to be shunned by Christians as one of the greatest temptations of Satan. “Man,” said they, “is conceived in sin and brought forth in iniquity; it was his complacency to woman that caused his first debasement; let man not therefore glory in his shame; let him not worship the fountain of his corruption.” Learning and accomplishments were alike discouraged, and women confined to a knowledge of cooking, family medicines and the unintelligible theological discussions of the day. Lydia Maria Child.—_History of Woman._

[54] Many women made their entrance into literature through the medium of a cook book, thus virtually apologizing for the use of a pen.

[55] The slavish superstition under which church teaching still keeps the minds of men was no less shown by the thousands who visited the St. Anne relic in the United States. Nor are Protestants but little less under the same superstition, accepting the teaching of the church without investigation. An educated Protestant girl, upon her return from Europe, recently, gravely declared that during her absence she had seen the spear which pierced the Saviour’s side.

[56] The most interesting of all to Americans is the copy of the American Constitution that President Cleveland sent to the Vatican by Cardinal Gibbons. It is printed on vellum in richly illuminated English characters, and bound in white and red. It is enclosed in a case of purple plush with gold hinges, and bears this autographic inscription by President Cleveland:

“Presented to his Holiness Pope Leo XIII., as an expression of congratulation on the occasion of his sacerdotal jubilee, with the profound regard of Grover Cleveland, President of the United States, through the courtesy of his Eminence Cardinal Gibbons, Archbishop of Baltimore.”

Washington, D.C.

Upon the next page, beneath an American eagle printed in gold, is this inscription:

“The Constitution of the United States. Adopted Sept. 17, 1787.”

The page bearing this inscription and all the fly leaves were of exquisite watered silk.

[57] “Owing to the pope’s refusal to accept the gifts of the king and queen of Italy on the occasion of his jubilee, all the members of the House of Savoy, including the Duke d’Aosta and the Princess Clotilde, have omitted to send offerings. This is the fly in the jubilee ointment of Pope Leo XIII., and settles the question of concessions of temporal power. Nevertheless, the day is passed when the claim of ‘imprisonment in the Vatican’ will further avail the pope.”

[58] When Linnaeus published his sexual system of plants, in the eighteenth century, he was ridiculed and shunned as one who had degraded nature.