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WOMEN IN CANON LAW

AUGUSTINE RÖSSLER
WILLIAM H.W. FANNING


I. Ulpian (Dig., I, 16, 195) gives a celebrated rule of law which most canonists have embodied in their works: "Women are ineligible to all civil and public offices, and therefore they cannot be judges, nor hold a magistracy, nor act as lawyers, judicial intercessors, or procurators." Public offices are those in which public authority is exercised; civil offices, those connected otherwise with municipal affairs. The reason given by canonists for this prohibition is not the levity, weakness, or fragility of the female sex, but the preservation of the modesty and dignity peculiar to woman. For the preservation of this same modesty many regulations have been made concerning female apparel. Thus, women may not use male attire, a prohibition already found in the Old Testament (Deut., xxii, 15). The canons add, however, that the assumption of the dress of men would be excusable in a case of necessity (Can. Quoniam 1, qu. 7), which seems to apply to the well-known case of Bl. Joan of Arc. Women must abstain from all ornament that is unbecoming in a moral sense (Can. Qui viderit, 13, c. 42, qu. 5). Some of the ancient Fathers are very severe on the practice of using pigments for the face. St. Cyprian (De habitu virg.) says: "Not only virgins and widows, but married women also, should, I think, be admonished not to disfigure the work and creature of God by using a yellow colour or black powder or rough, nor corrupt the natural lineaments with any lotion whatsoever." It is not held, however, to be a grave transgression when women ornament and paint themselves out of levity or vanity (St. Thomas, II-II:169:2), and if it is done with an upright intention and according to the custom of one's country or one's station in life, it is entirely unblameworthy (ibid., a. 1). Authors are even so benevolent as to say that if the face is painted to hide some natural defect, it is entirely licit, owing to the words of St. Paul (I Cor., xii, 12, 14): "And such as we think to be the less honourable members of the body, about these we put more abundant honour; and those that are our uncomely parts have more abundant comeliness. But our comely parts have no need." Canonists strictly condemn female clothing that does not cover the person properly (Pignatelli, III, consult. 35), and Innocent XI issued an edict against this abuse in the city of Rome.

II. In religious and moral matters, the common obligations and responsibilities of men and women are the same. There is not one law for a man and another for a woman, and in this, of course, the canons follow the teachings of Christ. Women, however, are not capable of certain functions pertaining to religion. Thus, a woman is not capable of receiving sacred orders (cap. Novae, 10 de poen.). Certain heretics of the early ages admitted females to the sacred ministry, as the Cataphrygians, the Pepuzians, and the Gnostics, and the Fathers of the Church in arguing against them declare that this is entirely contrary to the Apostolic doctrine. Later, the Lollards and, in our own time, some denominations of Protestants have constituted women ministers. Wyclif and Luther, who taught that all Christians are priests, would logically deny that the sacred ministry must be restricted to the male sex. In the early Church, women are sometimes found with the title bishopess, priestess, deaconess, but they were so denominated because their husbands had been called to the ministry of the altar. There was, it is true, an order of deaconesses, but these women were never members of the sacred hierarchy nor considered such. St. Paul (I Cor., xiv, 34) declares: "Let women keep silence in the churches: for it is not permitted them to speak, but to be subject, as also the law saith. But if they would learn anything, let them ask their husbands at home. For it is a shame for a woman to speak in the church". The Apostle also says that in the church "ought the woman to have a covering over head, because of the angels" (I Cor., xi, 10). It is not allowed to women, however learned and holy, to teach in monasteries (cap. Mulier, 20 de consec.). Ministering at the altar, even in a subordinate capacity, is likewise forbidden. A decree says: "It is prohibited to any woman to presume to approach the altar or minister to the priest" (cap. Inhibendum, 1 de cohab.); for if a woman should keep silence in church, much more should she abstain from the ministry of the altar, conclude the canonists.

III. Although women are not capable of receiving the power of sacred orders, yet they are capable of some power of jurisdiction. If a female, therefore, succeeds to some office or dignity which has some jurisdiction annexed to it, although she cannot undertake the cure of souls, yet she becomes capable of exercising the jurisdiction herself and of committing the care of souls to a cleric who can lawfully undertake it, and she can confer the benefice upon him (cap. Dilecta, de major. et obed.). Abbesses and prioresses, consequently, who have acquired such jurisdiction can exercise the rights of patronage in a parochial church and nominate and install as parish priest the candidate whom the diocesan bishop has approved for the cure of souls (S.C.C., 17 Dec., 1701). Such female patron can also, in virtue of her jurisdiction, deprive clerics subject to her of the benefices she had conferred upon them, by withdrawing the title and possession. In such a case, as the benefice was conferred dependently on the patronage of a female and on the collation of the title and possession, it is concluded that the spiritual right of the clerical incumbent was also dependent on the same, and when they are taken away, his spiritual right in them ceases, as it is presumed that the pope makes the ecclesiastical jurisdiction for the care of souls also dependent on the possession of the benefice in accordance with its rights of patronage. (Cf. Ferraris, below.) The female patron cannot, however, suspend such clerics nor lay them under interdict or excommunication, because a woman cannot inflict censures, as she is incapable of true spiritual jurisdiction (cap. Dilecta, de majorit. et obed.). A woman, even though an abbess or prioress having jurisdiction over her nuns, cannot bless publicly, since the office of benediction comes from the power of the keys, of which a woman is incapable. She can, however, bless her subjects in the same manner as parents are wont to give their blessing to their children, but not with any sacramental power even though she have the right to bear the crosier. (See Abbess.) Another species of apparent spiritual jurisdiction was forbidden to female religious superiors by Leo XIII, when by the Decree "Quemadmodum" (17 December, 1890), he prohibited any enforced manifestation of conscience (q.v.). Pius X in his motu proprio on church music (22 Nov., 1903) is moved by the fact than women are canonically prohibited from taking part ministerially in the Divine worship when he declares: "On the same principle, it follows that singers in the church have a real liturgical office, and that, therefore,women, as being incapable of exercising such office, cannot be admitted to form part of the choir or of the musical chapel." This does not prevent women, however, from taking part in congregational singing.

IV. Stringent regulations have been made from the earliest ages of the Church concerning the residence of women in the households of priests. It is true that St. Paul vindicated for himself and St. Barnabas the right of receiving the services of women in his missionary labours like the other Apostles (I Cor., ix, 5), who according to Jewish custom (Luke, viii, 3) employed them in a domestic capacity, yet he warns St. Timothy: "the younger widows avoid" (I Tim., v, 11). If the Apostles themselves were so circumspect, it is not surprising that the Church should make severe rules concerning the dwelling of women in the households of men consecrated to God. The first vestiges of a prohibition are found in the two epistles "Ad virgines" ascribed to St. Clement (A.D. 92-101); St. Cyprian in the third century also warns against the abuse. The Council of Elvira (A.D. 300-306) gives the first ecclesiastical law on the subject: "Let a bishop or any other cleric have residing with him either a sister or virgin daughter, but no strangers" (can. 27). The Council of Nicaea (A.D. 325) permits in a clerical dwelling "the mother, sister, aunt or such proper persons as give no ground for suspicion" (can. 3). This Nicene canon contains the general rule, which has since been retained as to substance in all decrees of councils. According to the present discipline, it is the right of the bishop in diocesan synod, to apply this general rule for his own diocese, more accurately defining it according to circumstances of times, places, and persons. The bishop cannot, however, forbid entirely the employment of women in a domestic capacity in the dwellings of clerics. He can, nevertheless, prohibit the residence of women, even though relatives, in the houses of priests, if they are not of good report. If other priests, such as assistants, live in the parochial house, the bishop can require that the women relatives have the age prescribed by the canons, which is ordinarily forty years. In some dioceses the custom has existed from the Middle Ages, of requiring the permission of the bishop in writing for the employment of female housekeepers, in order that he may be certain that the canonical prescriptions concerning age and reputation are fulfilled. In the Eastern Church, it is entirely forbidden to bishops to have any women residing in their dwellings, and a series of councils from 787 to 1891 have repeated this prohibition under severe penalties. Such rigour of discipline has never been received into the Western Church, though it has been considered proper that bishops should adhere to the common law of the Church in this matter even more rigorously than priests. As the Church is so solicitous to guard the reputation of clerics in the matter, so she has also enacted many laws concerning their interaction with those of the other sex both at home and abroad.

V. An antiphon in the Office of the Blessed Virgin, "Intercede pro devoto femineo sexu", has given rise to the belief that women are singled out as more devout than men. As a matter of fact, the words usually translated: "Intercede for the devout female sex" means simply "for nuns". The antiphon is taken from a sermon ascribed to St. Augustine (P.L., Serm. 194) in which the author distinguishes clerics and nuns from the rest of the faithful, and employs the term "devoted (i.e. bound by vow) female sex" for the consecrated virgins, according to the ancient custom of the Church.


Besides the books mentioned in the text of the article, the following may be given from the enormous literature on the subject:

I. For the woman question as a whole: Lange and Bäumer, Handbuch der Frauenbewegung, v Pts. (Berlin, 1901-02); Rössler, Die Frauenfrage vom Standpunkt der Natur, der Geschichte und der Offenbarung (2nd ed., Freiburg, 1907); Cathrein, Die Frauenfrage (3d ed., Freiburg, 1909); Mausbach, Die Stellung der Frau im Menscheitsleben: Eine Anwendung katholischer Grundsätze auf die Frauenfrage (München-Gladbach, 1906); Bekker, Die Frauenbewegung: Bedeutung, Probleme, Organisation (Kempten und Munich, 1911); Bettex, Mann und Weib (2nd ed., Leipzig, 1900); Lily Braun, Die Frauenfrage, ihre geschichtliche Entwicklung und ihre wirtschaftliche Seite (Leipzig, 1901); Wychgram, Die Kulturaufgaben der Frau Leipzig, (1910-12); in the following vols.: (1) Krukenberg, Die Frau in der Familie: (2) Freudenberg, Die Frau in die Kultur des öffentlichen Lebens: (3) Wirminghaus, Die Frau und die Kultur des Körpers; (4) Schleker, Die Kultur der Wohnung; (5) Bäumer,Die Frau und das geistige Leben; (6) Schleker, Die Frau u. der Haustralt; Laboulaye, Recherches sur la condition civile et politique de la femme (Paris, 1843); Klamm, Die Frauen (6 vols., Dresden, 1857-59).

II. Historical: Kavanagh, The Women of Christianity (London, 1852); idem, French Women of Letters (1862); Weinhold, Die deutsche Frau im Mittelalter (3d ed., Vienna, 1897); Bücher, Die Frauenfrage im Mittelalter (Tübingen, 1910); Duboc, Fünfzig Jahre Frauenfrage in Deutschland (Leipzig, 1896); Norrenberg, Frauenarbeit und Arbeiterinnenerziehung in deutscher Vorzeit (Cologne, 1880); Stopes, British Freewomen, Their Historical Privilege (London, 1907); Peters, Das erste Vierteljahrhundert des allg. deutschen Frauenvereines (Leipzig, 1908)

III. Modern Woman Question: Bücher, Die Frauen und ihr Beruf (5th ed., Leipzig, 1884); Parkes, Essays of Woman's Work (1866); von Stein, Die Frau auf dem sozialen Gebiete (Stuttgart, 1880); Idem, Die Frau auf dem Begiete der Nationalökonomie (6th ed., Stuttgart, 1886); Gnauck-Kühne, Die deutsche Frau m die Jahrhundertwende (2nd ed., Berlin, 1907); Poisson, La salaire des femmes (Paris, 1908); Criscuolo, La donna nella storia del diritto italiano (Naples, 1890); Ostrogorski, La femme au point de vue du droit publique (1892); Gnauck-Kühne, Warum organisieren wir die Arbeiterinnen? (Hamm, 1903); Idem, Arbeiterinnenfrage (München-Gladbach, 1905);Pierstorff, Frauenarbeit und Frauenfrage (Jena, 1900); Idem, Die Frau in der Wirtschaft des XX. Jahrhunderts in Handbuch der Politik, II, Par. 56 (Berlin, 1912); Gerhard and Simon, Mutterschaft und geistige Arbeit (Berlin, 1901); Salomon, Soziale Frauenpflichten (Berlin, 1902); Baumstatter, Die Rechtsverhältnisse der deutschen Frau nach der geltenden Gesetzgebung (Cologne, 1900); Dupanloup, La femme studieuse (7th ed., Paris, 1900); von Bischof, Das Studium und die Ausübung der Medizin durch die Frauen (Munich, 1887); von Schkejarewsky, Die Unterschiedsmerkmale der männlichen und weiblichen Typen mit Bezug auf die Frage der höheren Frauenbildung (2nd ed., Würzburg, 1898); Eine Abrechnung mit der Frauenfrage (Hamburg und Leipzig, 1906); Sigismund, Frauenstimmrecht (Leipzig, 1912); Idem, Muttererziehung durch Frauenarbeit (Freiburg, 1910).

The Catholic Encyclopedia, Volume XV
Copyright © 1912 by Robert Appleton Company
Online Edition Copyright © 2003 by K. Knight
Nihil Obstat, October 1, 1912. Remy Lafort, S.T.D., Censor
Imprimatur. +John Cardinal Farley, Archbishop of New York

 


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