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 assigned 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 institution. 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 noble,
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 assurance 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 circumstance 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 goddess,[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 nobles 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: Guardianship.]
The woman was always to be under guardianship 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 assert her rights in the lists. Thus the woman was under the
perpetual guardianship 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
institution 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 fiancé's leave, both she and the man who took her were
handed over as slaves to the original fiancé.[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 passed into the power of her husband "according to
the Sacred Scriptures," and the husband thereupon acquired the lordship
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 guardianship
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 "pass 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 guardianship; 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 assert
one's rights often involved fighting in the lists to determine the
judgment of God. It was a settled conviction among the Germanic peoples
that God 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 God, when appealed to in a fight, was
generally on the side of the party who had the better artillery.
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 pass 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 passed 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, assault, 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 passed. 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 God 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 assert her innocence by a solemn oath[357]
or, if necessary, by fighting for her as her champion in the lists. God
was supposed to give the victory to the champion who defended an
innocent party. If she could find no champi