A Short History of Women's Rights Part 10

[278] Codex, v, 4, 23 and 28.

[279] Codex, vi, 58, 14.

[280] Codex, i, 5, 19.

[281] Codex, v, 35, 2 and 3.

[282] Codex, ii, 55, 6.

[283] Codex, ix, 8, 5.

[284] This law was evidently lasting, for it is quoted with approval by Pope Innocent III, in the year 1199--see Friedberg, _Corpus Iuris Canonici_, vol. ii, p. 782.

[285] Codex, ix, 49, 10.

[286] Codex, v, 16, 24.

[287] For all these enactments see Codex, i, 3, 53 (54), and ix, 13.

CHAPTER IV

WOMEN AMONG THE GERMANIC PEOPLES

A second world force had now come into its own. The new power was the Germanic peoples, those wandering tribes who, after shattering the Roman Empire, were destined to form the modern nations of Europe and to find in Christianity the religion most admirably adapted to fill their spiritual needs and shape their ideals. In the year 476 the barbarian Odoacer ascended the throne of the Caesars. He still pretended to govern by virtue of the authority delegated to him by Zeno, emperor at Constantinople; but the rupture between East and West was becoming final and after the reign of Justinian (527-565) it was practically complete.

Henceforth the eastern empire had little or nothing to do with western Europe and subsisted as an independent monarchy until Constantinople was taken by the Turks in 1453. I shall not concern myself with it any longer.

In western Europe, then, new races with new ideals were forming the nations that to-day are England, Germany, France, Spain, Italy, and Austria. It is interesting to note what some of these barbarians thought about women and what place they a.s.signed them.

[Sidenote: Julius Caesar's account.]

Our earliest authorities on the subject are Julius Caesar and Tacitus.

Caesar informs us[288] that among the Gauls marriage was a well recognized inst.i.tution. The husband contributed of his own goods the same amount that his wife brought by way of dowry; the combined property and its income were enjoyed on equal terms by husband and wife. If husband or wife died, all the property became the possession of the surviving partner. Yet the husband had full power of life and death over his wife as over his children; and if, upon the decease of a n.o.ble, there were suspicions regarding the manner of his death, his wife was put to inquisitorial torture and was burnt at the stake when adjudged guilty of murder. Among the Germans women seem to have been held in somewhat greater respect. German matrons were esteemed as prophetesses and no battle was entered upon unless they had first consulted the lots and given a.s.surance that the fight would be successful.[289] As for the British, who were not a Germanic people, Caesar says that they practiced polygamy and near relatives were accustomed to have wives in common.[290]

[Sidenote: The account of Tacitus.]

Tacitus wrote a century and a half after Julius Caesar when the tribes had become better known the Romans; hence we get from him more detailed information. From him we learn that both the Sitones--a people of northern Germany--and the British often bestowed the royal power on women, a circ.u.mstance which aroused the strong contempt of Tacitus, who was in this respect of a conservative mind.[291] The Romans had, indeed, good reason to remember with sorrow the valiant Boadicea, queen of the Britons.[292] Regarding the Germans Tacitus wrote a whole book in which he idealises that nation as a contrast to the lax morality of civilised Rome, much as Rousseau in the eighteenth century extolled the virtues of savages in a state of nature. What Tacitus says in regard to lofty morals we shall do well to take with a pinch of salt; but we may with more safety trust his accuracy when he depicts national customs. From Tacitus we learn that the Germans believed something divine resided in women[293]; hence their respect for them as prophetesses.[294] One Velaeda by her soothsaying ruled the tribe of Bructeri completely[295]

and was regarded as a G.o.ddess,[296] as were many others.[297] The German warrior fought his best that he might protect and please his wife.[298]

The standard of conjugal fidelity was strict[299]; men were content with one wife, although high n.o.bles were sometimes allowed several wives as an increase to the family prestige.[300] The dowry was brought not by the wife to the husband, but to the wife by the husband--evidently a survival of the custom of wife purchase; but the wife was accustomed to present her husband with arms and the accoutrements of war.[301] She was reminded that she took her husband for better and worse, to be a faithful partner in joy and sorrow until death.[302] A woman guilty of adultery was shorn and her husband drove her naked through the village with blows.[303]

[Sidenote: The written laws of the barbarians.]

We see, then, that by no means all of these barbarian nations had the same standards in regard to women. Of written laws there were none as yet. But contact with the civilisation of Rome had its effect; and when Goths, Burgundians, Franks, and Lombards had founded new states on the ruins of the western Roman Empire, the national laws of the Germanic tribes began to be collected and put into writing at the close of the fifth century. Between the fifth and the ninth centuries we get the Visigothic, Burgundian, Salic, Ripuarian, Alemannic, Lombardian, Bavarian, Frisian, Saxon, and Thuringian law books. They are written in medieval Latin and are not elaborated on a scientific basis. Three distinct influences are to be seen in them: (1) native race customs, ideals, and traditions; (2) Christianity; (3) the Roman civil law, which was felt more or less in all, but especially in the case of the Visigoths; as was natural, since this people had been brought into closest touch with Rome. Inasmuch as the barbarians allowed all peoples conquered by them to be tried under their own laws, the old Roman civil law was still potent in all its strength in cases affecting a Roman. Let us endeavour to glean what we can from the barbarian codes on the matter of women's rights.

[Sidenote: Guardians.h.i.+p.]

The woman was always to be under guardians.h.i.+p among the Germanic peoples and could never be independent under any conditions. Perhaps we should rather call the power (_mundium_) wielded by father, brother, husband, or other male relative a protectorate; for in those early days among rude peoples any legal action might involve fighting to prove the merits of one's case, and the woman would therefore constantly need a champion to a.s.sert her rights in the lists. Thus the woman was under the perpetual guardians.h.i.+p of a male relative and must do nothing without his consent, under penalty of losing her property.[304] Her guardian arranged her marriage for her as he wished, provided only that he chose a free man for her husband[305]; if the woman, whether virgin or widow, married without his consent, she lost all power to inherit the goods of her relatives[306]; and her husband was forced to pay to her kin a recompense amounting to 600 _solidi_ among the Saxons, 186 among the Burgundians.[307]

[Sidenote: Marriage.]

The feeling of caste was very strong; a woman must not marry below her station.[308] By a law of the Visigoths she who tried to marry her own slave was to be burned alive[309]; if she attempted it with another's bondman, she merited one hundred lashes.[310] The dowry was a fixed inst.i.tution as among the Romans; but the bridegroom regularly paid a large sum to the father or guardian of the woman. This _wittemon_ was regarded as the price paid for the parental authority (_mundium_) and amounted among the Saxons to 300 _solidi_.[311] As a matter of fact this custom practically amounted to the intended husband giving the dowry to his future wife. The husband was also allowed to present his wife with a donation (_morgengabe_) on the morning after the wedding; the amount was limited by King Liutprand to not more than one fourth of all his goods.[312] Breaking an engagement after the solemn betrothal had been entered into was a serious business. The Visigoths refused to allow one party to break an engagement without the consent of the other; and if a woman, being already engaged, went over to another man without her parent's or fiance's leave, both she and the man who took her were handed over as slaves to the original fiance.[313] The other barbarians were content to inflict a money fine for breach of promise.[314]

[Sidenote: Power of the husband.]

The woman on marrying pa.s.sed into the power of her husband "according to the Sacred Scriptures," and the husband thereupon acquired the lords.h.i.+p of all her property.[315] The law still protected the wife in some ways.

The Visigoths gave the father the right of demanding and preserving for his daughter her dowry.[316] The Ripuarians ordained that whatever the husband had given his wife by written agreement must remain inviolate.[317] King Liutprand made the presence of two or three of the woman's male relatives necessary at any sale involving her goods, to see to it that her consent to the sale had not been forced.[318]

[Sidenote: Divorce.]

On the subject of divorce the regulations of the several peoples are various; but the commands of the New Testament are alike strongly felt in all; and we may expect to find divorce limited by severe restrictions.[319] The Burgundians allowed it only for adultery or grave crimes, such as violating tombs. If a wife presumed to dismiss her husband for any other cause, she was put to death (_necetur in luto_); to a husband who sent his wife a divorce without these specific reasons existing the law was more indulgent, allowing him to preserve his life by paying to his injured wife twice the amount that he had originally given her parents for her, and twelve _solidi_ in addition; and in case he attempted to prove her guilty of one of the charges mentioned above and she was adjudged innocent, he forfeited all his goods to her and was forced to leave his home.[320] The Visigoths were equally strict; the husband who dismissed his wife on insufficient legal grounds lost all power over her and must return all her goods; his own must be preserved for the children; if there were none, the wife acquired his property. A woman who married a divorced man while his first wife was living, was condemned for adultery and accordingly handed over to the first wife to be disposed of as the latter wished; exile, stripes, and slavery were the lot of a man who took another wife while his first partner was still alive.[321] The Alemanni and the Bavarians, who were more remote from Italy and hence from the Church, were influenced more by their own customs and allowed a pecuniary recompense to take the place of the harsher enactments.[322]

[Sidenote: Adultery.]

Adultery was not only a legal cause for divorce, but also a grave crime.

All the barbarian peoples are agreed in so regarding it, but their penalties vary according as they were more or less affected by proximity to Italy, where the power of the Church was naturally strongest. The Ripuarians, the Bavarians, and the Alemanni preferred a money fine ranging from fifty to two hundred _solidi_.[323] Among the Visigoths the guilty party was usually bound over in servitude to the injured person to be disposed of as the latter wished.[324] Sometimes the law was harsher to women than to men; thus, according to a decree of Liutprand,[325] a husband who told his wife to commit adultery or who did so himself paid a mulct of fifty _solidi_ to the wife's male relatives; but if the wife consented to or hid the deed, she was put to death. The laws all agree that the killing of adulterers taken in the act could not be regarded as murder.

[Sidenote: The Church indulgent toward kings.]

It is always to be remembered that although the statutes were severe enough, yet during this period, as indeed throughout all history, they were defied with impunity. Charlemagne, for example, the most Christian monarch, had a large number of concubines and divorced a wife who did not please him; yet his biographer Einhard, pious monk as he was, has no word of censure for his monarch's irregularities[326]; and policy prevented the Church from thundering at a king who so valiantly crushed the heretics, her enemies. Bishop Gregory of Tours tells us without a hint of being shocked that Clothacharius, King of the Franks, had many concubines.[327] Concubinage was, in fact, the regular thing.[328] But neither in that age, nor later in the case of Louis XIV, nor in our own day in the case of Leopold of Belgium has the Church had a word of reproach for monarchs who broke with impunity moral laws on which she claims always to have insisted without compromise.

[Sidenote: Remarriage.]

In accordance with the commands of Scripture neither the divorced man nor the divorced woman could marry again during the lifetime of the other party. To do so was to commit adultery, for which the usual penalties went into effect.

[Sidenote: Property rights and powers.]

A woman's property would consist of any or all of these:

I. Her share of the property of parents or brothers and sisters.

II. Her dowry and whatever nuptial donations (_morgengabe_) her husband had given her, and whatever she had earned together with her husband.

There could be no account of single women's property or disposal of what they earned, because in the half-civilised state of things which then obtained there was no such thing as women engaging in business; indeed, not even men of any pretension did so; war was their work. The unmarried woman was content to sit by the fire and spin under the guardians.h.i.+p and support of a male relative. Often she would enter a convent.

I shall first discuss the laws of inheritance as affecting women, in order to note what property she was allowed to acquire. In this connection it is well to bear in mind a difference between Roman and Germanic law. The former viewed an inheritance as consisting always of a totality of all goods, whether of money, land, movables, cattle, dress, or what not. But among the Germanic peoples land, money, ornaments, and the like were regarded as so many distinct articles of inheritance, to some of which women might have legal claims of succession, but not necessarily to all. This is most emphatically shown in the case of land.

Of all the barbarian peoples, the Ripuarians alone allowed women the right to succeed to land.[329] Among other nations a daughter or sister or mother, whoever happened to be the nearest heir, would get the money, slaves, etc., but the nearest _male_ kin would get the land.[330] Only if male kin were lacking to the fifth degree--an improbable contingency--did alodial inheritance "pa.s.s from the lance to the spindle."[331] In respect to all other things a daughter was co-heir with a son to the estate of a father or mother. According to the Salic and Ripuarian law this would be one order of succession[332]:

I. Children of the deceased.

II. These failing, surviving mother or father of deceased.

III. These failing, brother or sister of deceased.

IV. These failing, sister of mother of deceased.

V. These failing, sister of father of deceased.

VI. These failing, male relatives on father's side.

It will be observed that in such a succession these laws are more partial to women relatives than the Roman law; an aunt, for example, is called before an uncle. An uncle would certainly exclude an aunt under the Roman law; but most of the Germanic codes allowed them an equal succession.[333] Nevertheless, when women did inherit under the former, they acquired the land also. Moreover, the woman among the Germanic nations must always be under guardians.h.i.+p; and whereas under the Empire the power of the guardian was in practice reduced to nullity, as I have shown, among the barbarians it was extremely powerful, because to a.s.sert one's rights often involved fighting in the lists to determine the judgment of G.o.d. It was a settled conviction among the Germanic peoples that G.o.d would give the victory to the rightful claimant. As women could not fight, a champion or guardian was a necessity. This was not true in Roman courts, which preferred to settle litigation by juristic reasoning and believed, like Napoleon, that G.o.d, when appealed to in a fight, was generally on the side of the party who had the better artillery.