Children inherited not only the estate but also the friendships and enmities of their fathers, which it was their duty to take up.

Hereditary feuds were a usual thing.[334] King Liutprand ordaine[335]

however, that if a daughter alone survived, the feud was to be brought to an end and an agreement effected.

Some of the nations seem to have provided that children must not be disinherited except for very strong reasons; for example, the law of the Visigoths[336] forbids more than one third of their estate being alienated by mother or father, grandmother or grandfather. The Alemanni permitted a free man to leave all his property to the Church and his heirs had no redress[337]; but the Bavarians compelled him before entering monastic life to distribute among his children their proportionate parts.[338]

[Sidenote: Property of the married woman.]

We may pa.s.s now to the property rights of the married woman. The relation of her husband to the dowry I have already explained. The dowry was conceived as being ultimately for the children; only when there were no children, grandchildren, or great-grandchildren did the woman have licence to dispose of the dowry as she wished: this was the law among the Visigoths.[339] The dowry, then, was to revert to the children or grandchildren at the death of the wife; if there were none such, to the parents or relatives who had given her in marriage; these failing, it escheated to the Crown--so according to Rotharis.[340] By the laws of the Visigoths[341] when the wife died, her husband continued in charge of the property; but, as under the Roman law, he had to preserve it entire for the children, though he might enjoy the usufruct. When a son or daughter married, their father must at once give them their share of their mother's goods, although he could still receive the income of one third of the portion. If son or daughter did not marry, they received one half their share on becoming twenty years of age; their father might claim the interest of the other half while he lived; but at his death he must leave it to them. When a woman left no children, her father or nearest male kin usually demanded the dowry back.[342]

When the husband died, his estate did not go to wife, but to his children or other relatives.[343] If however, any property had been earned by the joint labour of husband and wife, the latter had a right to one half among the Westfalians; to one third among the Ripuarians; to nothing among the Ostfalians.[344] Children remained in the power of their mother if she so desired and provided she remained a widow. A mother usually had the enjoyment of her dowry until her death, when she must leave it to her children or to the donor or nearest relative.[345]

If the husband died without issue, some nations allowed the wife a certain succession to her husband's goods, provided that she did not marry again. Thus, the Burgundians gave her under such conditions one third of her husband's estate to be left to his heirs, however, at her death.[346] The Bavarians, too, under the same conditions allowed her one half of her husband's goods[347] and even if there was issue, granted her the right to the interest of as much as one child received.[348]

A widow who married again lost the privilege of guardianship over her children, who thereupon pa.s.sed to a male relative of the first husband.

As to the dowry of the prior union the woman must make it over at once to her children according to some laws or, according to others, might receive the usufruct during life and leave it to the children of the first marriage at her death. Any right to the property of her first husband she of course lost.[349] When there was no issue of the first marriage then the dowry and nuptial donations could usually follow her to a second union.

[Sidenote: Criminal law pertaining to women.]

Criminal law among these half civilised nations could not but be a crude affair. Their civilisation was in a state of flux, and immediate practical convenience was the only guide. They were content to fix the penalties for such outrages as murder, rape, insult, a.s.sault, and the like in money; the Visigoths alone were more stringent in a case of rape, adding 200 lashes and slavery to the ravisher of a free woman who had accomplished his purpose.[350] Some enactments which may well strike us as peculiar deserve notice. For example, among the Saxons the theft of a horse or an ox or anything worth three _solidi_ merited death; but murder was atoned for by pecuniary damages.[351] Among the Burgundians, if a man stole horses or cattle and his wife did not at once disclose the deed, she and her children who were over fourteen were bound over in slavery to the outraged party "because it hath often been ascertained, that these women are the confederates of their husbands in crime."[352]

The most minute regulations prevailed on the subject of injury to women.

Under the Salic law[353] for instance, if a free man struck a free women on the fingers or hand, he had to pay fifteen _solidi_; if he struck her arm, thirty _solidi_; if above her elbow, thirty-five _solidi_; if he hit her breast, forty-five _solidi_. The penalties for murdering a free woman were also elaborated on the basis of her value to the state as a bearer of children. By the same Salic law[354] injury to a pregnant woman resulting in her death merited a fine of seven hundred _solidi_; but two hundred was deemed sufficient for murder of one after her time for bearing children had pa.s.sed. Similarly, for killing a free woman after she had begun to have children the transgressor paid six hundred _solidi_; but for murdering an unmarried freeborn girl only two hundred.

The murder of a free woman was punished usually by a fine (_wergeld_) equal to twice the amount demanded for a free man "because," as the law of the Bavarians has it,[355] "a woman can not defend herself with arms.

But if, in the boldness of her heart (per audaciam cordis sui), she shall have resisted and fought like a man, there shall not be a double penalty, but only the recompense usual for a man [160 _solidi_]." Fines were not paid to the state, but to the injuried parties or, if these did not survive, to the nearest kin. If the fine could not be paid, then might death be meted to the guilty.[356]

Another peculiar feature of the Germanic law was the appeal to G.o.d to decide a moot point by various ordeals. For example, by the laws of the Angles and Werini, if a woman was accused of murdering her husband, she would ask a male relative to a.s.sert her innocence by a solemn oath[357]

or, if necessary, by fighting for her as her champion in the lists. G.o.d was supposed to give the victory to the champion who defended an innocent party. If she could find no champion, she was permitted to walk barefoot over nine red-hot ploughshares[358]; and if she was innocent, G.o.d would not, of course, allow her to suffer any injury in the act.

[Sidenote: Women in slavery.]

Perhaps a word on the status of women in slavery among the Germanic nations will not be out of place. The new nations looked upon a slave as a chattel, much as the Romans did. If a wrong was done a slave woman, her master received a recompense from the aggressor, but she did not, for to hold property was denied her. But we may well believe that the great value which the Church put on chast.i.ty and conjugal fidelity rendered the slave woman less exposed to the brutal pa.s.sions of her lord than had been the case under the Empire. Thus, by a law of King Liutprand, a master who committed adultery with the wife of a slave was compelled to free both[359]; and the Visigot[360] inflicted fifty lashes and a fine of twenty _solidi_ upon the man who used violence to another man's slave woman.

On comparing the position of women under Roman law and under the Germanic nations, as we have observed them thus far, we should note first of all that under the latter women benefited chiefly by the insistence of the Church on the value of chast.i.ty in both s.e.xes. That in those days the pa.s.sions of men were difficult to restrain in practice does not invalidate the real service done the world by the ideal that was insisted upon,[361] an ideal which was certainly not held in pagan antiquity except by a few great minds. Although the social position of woman was thus improved, the character of the age and the sentiments of the Bible which I have already quoted made her status far inferior to her condition under Roman law so far as her legal rights were concerned.

In a period[362] when the a.s.sertion of one's rights constantly demanded fighting, the woman was forced to rely on the male to champion her; the Church, in accordance with the dicta of the Apostles, encouraged and indeed commanded her to confine herself to the duties of the household, to leave legal matters to men, and to be guided by their advice; and thus she was prevented from a.s.serting herself out of regard for the strong public opinion on the subject, which was quite alien to the sentiments of the old Roman law. Henceforward also we are to have law based on old customs and _theology_,[363] not on practical convenience or scientific reasoning.

SOURCES

I. Corpus Iuris Germanici Antiqui: edidit Ferd. Walter.

Berolini--impensis G. Reimeri, 1824. 3 vols.

II. C. Iulii Caesaris Commentarii de Bello Gallico: recognovit Geo.

Long. Novi Eboraci apud Harperos Fratres. 1883

III. Cornelii Taciti libri qui supersunt: quartum recognovit Carolus Halm. Lipsiae (Teubner), 1901.

IV. Sancti Georgii Florentii Gregorii, Episcopi Turonensis, Historiae Ecclesiasticae Francorum libri decem: edidit J. Guadet et N.R. Taranne.

Parisiis, apud Julium Renouard et Socios, 1838.

V. Iordanis de Origine Actibusque Getorum: edidit Alfred Holder.

Freiburg und Tubingen; Verlagsbuchhandlung von J. C.B. Mohr.

VI. Widukindi Rerum Gestarum Saxonicarum libri tres. Accedit libellus de Origine Gentis Suevorum. Editio quarta: post Georgium Waitz recognovit Karolus A. Kehr. Hannoverae et Lipsiae Impensis Bibliopolii Hahniani, 1904.

VII. Procopii Caesariensis opera omnia: recognovit Jacobus Haury.

Lipsiae. (Teubner). 1905.

VIII. Einhardi Vita Karoli Magni. Editio quinta. Post G.H. Perte recensuit G. Waitz. Hannoverae et Lipsiae, 1905.

IX. Pauli Historia Langobardorum: edidit Georg Waitz. Hannoverae, impensis Bibliopolii Hahniani, 1878.

NOTES:

[288] _de Bell. Gall_., vi, 19.

[289] Id., i, 50.

[290] Id., v, 14.

[291] _Agricola_, 16. _Germania_, 45: Suionibus Sitonum gentes continuantur. Cetera similes, uno differunt, quod femina dominatur; in tantum non modo a libertate, sed etiam a servitute degenerant. No woman ever reigned alone as queen of the Roman Empire until 450 A.D., when Pulcheria, sister of Theodosius II, ascended the throne of the East; but she soon took the senator Marcian in marriage and made him king.

[292] _Agricola_, 16.

[293] _Germania_, 8.

[294] Procopius, _de bello Vandalico_, ii, 8, observes the same thing among the Maurousians, or Moors, in northern Africa: [Greek: andra gar manteuesthai en to ethnei touto ou themis, alla gunaikes sphisi katochoi hek de tinos lerourgias ginomenai prolegousi ta esomena, ton palai chresterion oudenos esson.]

[295] Tacitus, _Hist_., iv, 61, and v, 24.

[296] Id., _Germania_, 8.

[297] Ibid., 8.

[298] Ibid., 7.

[299] Ibid., 17.

[300] Ibid.

[301] Ibid., 18.

[302] Ibid., 18 and 19.

[303] Ibid., 19.

[304] Liutprand, i, 5: Si filiae aut sorores contra voluntatem patris aut fratris egerint, potestatem habet pater aut frater iudicandi res suas quomodo aut qualiter voluerit.

[305] Leges Liutprandi, vi, 119: si quis filiam suam aut sororem alii sponsare voluerit, habeat potestatem dandi cui voluerit, libero tamen homini. Lex Wisigothorum, iii, 1, 7 and 8.

[306] Leges Liutprandi, vi, 119. Lex Angliorum et Werinorum, x, 2: si libera femina sine voluntate patris aut tutoris cuilibet nupserit, perdat omnem substantiam quam habuit vel habere debuit. Reply of a bishop quoted by Gregory of Tours, 9, 33: quia sine consilio parentum eam coniugio copulasti, non erit uxor tua. But the law of the Visigoths (iii, i, 8, and 2,8) merely deprived her of succession to the estate of her parents.