Property is a delicate test of the condition of a nation. It is a singular fact of history that the rights of property have everywhere been recognized before the rights of persons, and wherever the rights of any class to property are attacked, it is a most subtle and dangerous assault upon personal rights. The chief restrictive element of slavery was the denial to the slave of the proceeds of his own labor. As soon as a slave was allowed to hire his time, the door of freedom began to open to him. The enslavement of woman has been much increased from the denial of the rights of property to her, not merely to the fruits of her own labor, but to the right of inheritance.
The great school of German jurists[200] teach that ownership increases both physical and moral capacity, and that as owner, actual or possible, man is a more capable and worthy being than he would otherwise be. Inasmuch as under canon law woman was debarred from giving testimony in courts of law, sisters were prohibited from taking an inheritance with brothers, and wives were deprived of property rights, it is entirely justifiable to say ecclesiastical law injured civilization by its destruction of the property rights of women.[201]
The worst features of canon law, as Blackstone frankly admits, are those touching upon the rights of woman. These features have been made permanent to this day by the power the Church gained over common law,[202] between the tenth and sixteenth centuries, since which period the complete inferiority and subordination of the female sex has been as fully maintained by the State as by the Church. The influence of canon law upon the criminal codes of England and America has but recently attracted the attention of legal minds. Wharton, whose "Criminal Law" has for years been a standard work, did not examine their relation until his seventh edition, in which he gave a copious array of authors, English, German, and Latin, from whom he deduced proof that the criminal codes of these two countries are pre-eminently based upon ecclesiastical law.
Canon law gave to the husband the power of compelling the wife's return if, for any cause, she left him. She was then at once in the position of an outlaw, branded as a run-away who had left her master's service, a wife who had left "bed and board" without consent, and whom all persons were forbidden "to harbor" or shelter "under penalty of the law." The absconding wife was in the position of an excommunicate from the Catholic Church, or of a woman condemned as a witch. Any person befriending her was held accessory to the wife's theft of herself from her husband, and rendered liable to fine and other punishment for having helped to rob the husband (master) of his wife (slave).
The present formula of advertising a wife, which so frequently disgraces the press, is due to this belief in wife-ownership.
Whereon my wife ... has left my bed and board without just cause or provocation, I hereby forbid all persons from harboring or trusting her on my account.
By old English law, in case the wife was in danger of perishing in a storm, it was allowable "to harbor" and shelter her.
It is less than thirty years since the dockets of a court in New York city, the great metropolis of our nation, were sullied by the suit of a husband against parties who had received, "harbored" and sheltered his wife after she left him, the husband recovering $10,000 damages.
Although England was Christianized in the fourth century, it was not until the tenth that a daughter had a right to reject the husband selected for her by her father;[203] and it was not until this same century that the Christian wife of a Christian husband acquired the right of eating at table with him. For many hundred years the law entered families, binding out to servile labor all unmarried women between the ages of eleven and forty.
For more than a thousand years women in England were legislated for as slaves. They were imprisoned for crimes that, if committed by a man, were punished by simple branding in the hand; and other crimes which he could atone for by a fine, were punished in her case by burning alive. Down to the end of the eighteenth century the punishment of a wife who had murdered her husband was burning[204] alive; while if the husband murdered the wife, his was hanging, "the same as if he had murdered any stranger." Her crime was petit treason, and her punishment was the same as that of the slave who had murdered her master. For woman there existed no "benefit of clergy," which in a man who could read, greatly lessened his punishment; this ability to read enabling him to perform certain priestly functions and securing him immunity in crime. The Church having first made woman ineligible to the priesthood, punished her on account of the restrictions of its own making. We who talk of the burning of wives upon the funeral pyres of husbands in India, may well turn our eyes to the records of Christian countries.