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which the gift is described and transferred. A free rendering of one of these formulas under the Salic law of the eighth century will give an idea of them all.*
To my very dear and sweet betrothed, Nmy N
in the name of God,
"It has been agreed between our parents that I should betroth myself to you 'par le sol et denier'† according to the Salic law. I have done so. It has also been agreed that I should give you as dower part of my property. I have done it. Thus, then by this act of dower and these ceremonies, I give you and wish that you hold in perpetuity, all that I possess in such a canton, on such a river, etc., etc. All this I give you, I deliver to you, I place it in your power. After the day of marriage shall have come and God shall have united us, I wish, my dear spouse, that instantly you have, hold, possess all this which I give you and that you have the most absolute right to dispose of it as pleases you, etc. "
Community of Property.-In the law of the Westphalian Saxons, which is most nearly allied to the AngloSaxon, the wife lost her dos or morning-gift by the birth of sons and instead of it became entitled to half the joint acquisitions. Lex Saxonum VIII.: "Apud Westfalaos, postquam mulier filios genuerit, dotem amittat, si autem non genuerit ad dies suos dotem possideat, post decessum ejus dos ad dantem, vel si deest, ad proximos heredes ejus revertatur."
"IX. De eo, quod vix et mulier simul conquisiverint, mulier mediam partem accipiat, et hoc apud Westfalaos, apud Ostfalaos et Angarios nihil accipiat sed contenta sit dote sua." Here we have the first traces of that community of property which has ever since existed in Westphalia.
*Lindenbrog, Formulæ 615.
† A formula referring to the payment of a nominal bride-price.
Another formula, probably belonging to the middle of the eighth century among the Turones, who lived north of the Loire reads thus: (Mon. Germ. Hist. Sect. II., legum VI., no. 14.)
"Ergo dono tibi donatumque esse volo locello, re proprietatis meae, nuncupante illo, situm in pago illo, cum terris, aedificiis mancipiis, &c., &c., mobilibus et immobilibus-totum et ad integrum sicut a me praesenti tempore videtur esse possessum-haec omnia-diebus nuptiarum tibi sum implèturus vel traditurus, ita ut, dum advixeris, secundum legis ordinem teneas atque possideas, nostrisque qui ex nobis procreati fuerit, filiis (vel filiabus) derelinquas. Si quis vero, si ego ipse aut ulla quislibet persona fuerit, qui contra hanc donationem aliquid agere vel calumniam generare presumpserit, illud quod repetit non vindicet, &c., &c."
Similar provisions for the wife's share in what is explicitly recognized as the "joint acquisitions" exist in the related laws.* Aimoin says of the death of King Dagobert, "tertiam partem tamen ex omnibus, quae Dagobertus adquis ierat postquam Nauthildem sibi sociaverat ipsi reginae servata." The fact is also mentioned in the "Gesta Dagoberti." A wife even had a right to a third of her husband's wages. A free woman who married a slave is in one instance expressly assured of this by the master of the slave;† et peculiare quod stante, conjugio laborare potuerit, ipsa femena tercia parte exinde habeat absque nostra repeticione."
Aussteuer.-Besides the gift from her husband or her legal share in the acquisitions, the German bride was usually fitted out by her father or brothers with an Aussteuer § or marriage portion, consisting largely of personal property and designed for her exclusive use. In this is included the Gerade,|| a peculiar kind of property belonging solely to the wife and descending only to female heirs. This included her ornaments, often jewels of great value, also ready money, clothing, house-linen of all kinds, many pieces of furniture, sometimes the sheep which were shorn by the wife, the poultry which was fed by her, and even, sometimes, female animals were divided from male.T
The Lex Saxonum does not speak of Aussteuer, but its existence may be inferred** from the later prevalence of Gerade. The Sachsenspiegel gives the following list of articles included in Gerade: "All sheep, geese, beds, bowls, pillows, bed covers, chests with raised lids, all yarn, table covers, collars, bath-linen, basins, candlesticks, linen and all feminine apparel, finger-rings, gold armlets, draughtboards, facings, * See Lex Ripuaria, 372 before quoted. In the Frisian law which is very closely related to the Anglo-Saxon there was community of property even to sharing equally at divorce.
† Schroeder I., 92-93. Formulæ Andegavi 58.
Schroeder for sitante.
Walter, p. 139.
1 Grimm, op. cit., pp. 568-599.
Starcke," Primitive Family," p. 109.
**Schroeder, I., 120.
and all books that belong to God's service which women are accustomed to read, small chests, carpets, curtains (?), rugs, jewels." In other lists occur such articles as "ein kettel darin man ein kind inne baden kann : ein pott darin man ein huen sieden kann: ein klein pottchen darin man ein warmbier machen kann."
C. POWERS OF THE MARRIED WOMAN OVER HER PROPERTY.—Every German woman, married or single, was at the time of the Folk Laws under the guardianship of some man, her father, brother, husband or the nearest male relative. In the earliest times the widow passed into the guardianship of her husband's heirs, from whom her paternal kindred could buy back their original guardianship. But these restrictions soon gave way in the case of widows, who gradually acquired complete independence.†
Even the guardianship of the husband over his wife is generally supposed to have been greater than it was. For adultery he could divorce her or even put her to death.§ He had the right to punish her, even to beat her with a stick, and indeed it was held to be his duty to maintain his physical supremacy. A woman who had struck her husband || was obliged to ride on an ass, seated backwards and holding its tail, through the whole street. If she had struck him cunningly when he could not defend himself the ass was led by the officer whose duty it was to keep the animal, but if he had been beaten by her in open fight, he must lead the ass himself. In some places a man who had been struck by his wife was obliged to see his neighbors gather and take the roof oft from his house. "Who could not protect himself from his wife was not worthy to have shelter from wind and storm."
* Lex Saxonum VIII. 2. Grimm, p. 447.
Laboulaye Recherches sur la condition des femmes,” p. 140.
See H. Adams, "The Primitive Rights of Women," in "Hist. Essays," p. 31. Formula Andegavi 56. Marc. 2. 30. Lex Ripuaria 77.
Schroeder, p. 174.
| Grimm. p. 722, etc.
Lex. Rotharis 211.
But she was independent of his control in her own domain and had charge of the keys,* while as to her property his guardianship gave him only limited powers. In the first place her Gerade was absolutely her own.† She could
even sell it without his consent and it went to her heirs at her death. When we consider how extensive the Gerade might be in the case of a wealthy bride, we see that the German wife might be practically independent in a degree that modern women have attained only within a few years and in a few countries. Whatever came to the wife by inheritance or gift (Eingebrachtes) was also her own, as were her separate earnings ‡ and her morning-gift. There is no question that these were considered her separate individual property, during the marriage. § Did she, however, have any share in the management of her property and any control of her income? It is generally considered || that the rights of the wife were in abeyance during the husband's life and that she first became capable of management when she became a widow.
There are, however, some considerations opposed to this view. The Lex Saxonum expressly says that the childless woman shall possess her morning-gift for her life; at her death it shall return to the giver, who was, of course, her husband. This, to be sure, says nothing about the control of the morning-gift, but many formulas expressly state that it shall be hers from the day of the marriage to dispose of as she pleases. In the formula before quoted, the words "I wish that instantly you have, hold and possess all I give
* Schroeder, p. 126.
† L. Burg 51, p. 4. Nam si quid de propriis ornamentis vestibusque decreverit nulla in posterum actione causabiter. L. Angl. VI. 6. Schroeder II., pp. 3, 323.
Walter, p. 140.
Schroeder, p. 139.
See the dotis libellum before quoted, "diebus nuptiarum ;" Lex Saxonum“ ad dies suos possideat," etc: Schroeder, p. 103.
| Laboulaye, p. 137. Pardessus, p. 673. Schroeder, p. 128. Schroeder, p. 72, seems to admit the rights of the Frankish wife to a control of her third," Aber dies drittheilsrecht ist nicht bloss ein Anspruch der Wittwe sondern auch während der Ehe kommt es vor dass die Frau selbst über ihr Drittel verfügt."
you and that you have the most absolute right to dispose of it as it pleases you" seem unmistakable. Other gifts are made to take effect "when the happy day shall have come.” While on the other hand, it is often stipulated that the gift or dower shall pass to the wife only if she outlive her husband. The very stipulation argues that without it the gift would take effect immediately.
I infer from these formulas that, at least where the dotis libellum so provided, the wife had control of her morninggift or dower, especially since, as Schroeder admits, † the sources do not show that the husband had control. Her consent is necessary to his alienation. Laboulaye cites cases when a wife alienates her dower while her husband is living, but always in favor of her son. There are mandates by which a wife gives her husband authority to transact business for her, but in these the influence of the Roman law is evident.
D. SHARE OF THE WIDOW.-Every widow was entitled to her Gerade, her Eingebrachtes (what had come to her by ordinary gift or inheritance) and her morning-gift. Among the Westphalians the widow who had had sons was entitled to half the common acquisitions, while the childless woman was obliged to be content with her morning-gift and with it only for her life. At her death it returned to the giver or his nearest heirs.
This legal disposition of the property might be altered by a "donation on account of death, a kind of testamentary disposition, sometimes made by one, sometimes made by both the spouses. The mutual form is common, in which the husband and wife agree that whichever survives shall
* Laboulaye, p. 136, quotes from Hist. of Languedoc a contract of marriage A. D. 1095: "All this I give you-entire-with this condition: so long as we both live we will hold and possess this gift together." Formula Andegavi 17. Vaisette II., n. 101 amn. 966 quoted by Gide, “Etude sur la condition privée de la femme,” p. 338, says; Haec omnia superius scripta quamdiu vivimus pariter teneamus et possideamus et si uxor mea me supervixerit ipsa omnia teneat et possideat.
+ Op. cit., p. 128.
Op. cit., p. 122, n. I.