Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/679

Rh rendered the parties guilty of adultery. Severe laws were enacted against offences of unchastity, especially procure ment and incest. It was a capital crime to carry off or offer violence to a nun. A wife could not commit furtum of her husband s goods, but he had a x special action rerum amotarum against her. By several sumptuary consti tutions, contained in the Code, bk. xi., women as well as men were subject to penalties for wearing dress or orna ments (except rings) imitating those reserved for the emperor and his family. Actresses and women of bad fame were not to wear the dress of virgins dedicated to Heaven. If a consul had a wife or mother living with him, he was allowed to incur greater expense than if he lived alone. The interests of working women were pro tected by enactments for the regulation of the gynoecia, or workshops for spinning, dyeing, &c. The canon law, looking with disfavour on the female independence prevailing in the later Roman law, tended rather in the opposite direction. The Decretum specially inculcated subjection of the wife to the husband, and obedience to his will in all things. 1 The chief differences between canon and Roman law were in the law of marriage, especially in the introduction of publicity and of the formalities of the ring and the kiss. The benediction of a priest was made a necessary part of the ceremony, as indeed it had been made by the civil power, as has been already stated, in the post-Justinian period of Roman law. But in practice this rule appears to have fallen into disuse until it was again revived by the council of Trent. It was, however, the rule of the English common law after the Reformation. The ceremony was not to be performed during Lent. The woman was to be veiled during the ceremony. A promise of marriage was so sacred that it made a subsequent marriage with another person void. Spiritual cognation was a bar to marriage. The sentence of the church was made necessary for divorce. As to women in general the law does not say very much. Women, even relatives, were not to live with priests unless in case of necessity. They were not to approach the altar or fill any public office of the church ; nor might they lend money on usury. Baptism might be valid although administered by a woman. Women who had professed religion could not be forced to give evidence as witnesses. In some cases the evidence of women was not receivable (see WITNESS). 2 The early law of the northern parts of Europe is interesting from the different ways in which it treated women. In the words of Sir H. Maine 3 &quot; The position of women in these barbarous systems of inheritance varies very greatly. Sometimes they inherit, either as individuals or as classes, only when males of the same generation have failed. Sometimes they do not inherit, but transmit a right of inheritance to their male issue. Sometimes they succeed to one kind of property, for the most part mov able property, which they probably took a great share in producing by their household labour ; for example, in the real Salic law (not in the imaginary code) there is a set of rules of succession which, in my opinion, clearly admit women and their descendants to a share in the inheritance of movable property, but confine land exclusively to males and the descendants of males. . . . The idea is that the proper mode of providing for a woman is by giving her a marriage portion ; but, when she is once married into a separate community consisting of strangers in blood, neither she nor her children are deemed to have any further claim on the parent group.&quot; Among the Scandinavian races 1 Pt. ii. caus. xxxiii. qu. v. ch. 16. 2 On this branch of the subject Manssen s Het Christendom en de Vromv (Leyden, 1877) may be consulted with advantage. 3 Early Law and Custom, ch. v. 639 women were under perpetual tutelage, whether married or unmarried. The first to obtain freedom were the widows. 4 As late as the code of Christian V., at the end of the 17th century, it was enacted that if a woman married without the consent of her tutor he might have, if he wished, administration and usufruct of her goods during her life. 5 The provision made by the Scandinavian laws under the name of morning-gift was perhaps the parent of the modern settled property. 6 The Brehon law of Ireland excepted women from the ordinary course of the law. They could distrain or contract only in certain named cases, and distress upon their property was regulated by special rules. In the pre-Conquest codes in England severe laws were denounced against unchastity, and by a law of Canute a woman was to lose nose and ears for adultery. The laws of Athelstan contained the peculiarly brutal pro vision for the punishment of a female slave convicted of theft by her being burned alive by eighty other female slaves. Other laws were directed against the practice of WITCHCRAFT (&amp;lt;?.v.) by women. Monogamy was enforced both by the civil and ecclesiastical law; and second and third marriages involved penance. A glimpse of cruelty in the household is afforded by the provision, occurring no less than three times in the ecclesiastical legislation, that if a woman scourged her female slave to death she must do penance. Traces of wife-purchase are seen in the law of Ethelbert, enacting that if a man carry off a freeman s wife he must at his own expense procure the husband another wife. The codes contain few provisions as to the property of married women, but those few appear to prove that she was in a better position than at a later period. The laws of Ine gave her a third of her husband s property ; the laws of Edmund as to betrothal allowed this to be increased to half by antenuptial contract, to the whole if she had children and did not re-marry after her husband s death. No doubt the dower ad ostium ecclesise. favoured by the church generally superseded the legal rights where the property was large in fact this is specially provided by Magna Charta, c. 7 just as at present rights under a marriage settlement take the place of those given by, statute. &quot; Provisio hominis tollit provisionem legis.&quot; The legal rights of a married woman apart from contract were gradually limited, until by the time of Glanvill her person and property had become during her husband s lifetime entirely at his disposal, and after his death limited to her dower and her pars rationabilis (see WILL). A few of the more interesting matters in which the old common and statute law of England placed women in a special position may be noticed. A woman was exempt from legal duties more particularly attaching to men and not performable by deputy. She could apparently origin ally not hold a proper feud, i.e., one of which the tenure was by military service. 7 The same principle appears in the rule that she could not be endowed of a castle main tained for the defence of the realm and not for the private use of the owner. She could receive homage, but not render it in the form used by men, and she was privileged from suit and service at the sheriff s tourn. She was not sworn to the law by the oath of allegiance in the leet or 4 See Stiernhb iik, De Jure Svconum (Stockholm, 1672), bk. ii. cli. i. ; Messenius, Leges Svecorum (Stockholm, 1714). 5 Bk. iii. ch. xvi. ^ 1, 2. 6 The development of the bride-price no doubt was in the same direction. Its original meaning was, however, different. It was the sum paid by the husband to the wife s family for the purchase of part of the family property, while the morning-gift was paid as pretiuin virginitatis to the bride herself. In its English form morning-gift occurs in the laws of Canute; in its Latinized form of morgangiva it occurs in the Leges Henrici Primi. 1 It is remarkable that the great fiefs of France except the Isle of France, the special apanage of the crown, all became in time female iiefs. This is shown by the table at the end of Laboulaye s llecherches.