VII.
With the Longobards, as with all the Germanic nations, woman was never released from tutelage (mundium), never became her own mistress (selbmundia). The man who desired to make her his wife must first of all pay the price of the mundium or guardianship which the marriage would give him over her; next he must bind himself to make good the meta, a species of dowry noticed by Tacitus when he remarks that, among the Germans, the husband brought the dower to the wife, instead of the wife bringing it to the husband. To the meta, also known afterwards under the name of dotalitium, dos, sponsalicium, &c., there was added the faderfium, which the father might, if he chose, give to his daughter. On the morning of the day after the wedding the husband presented his bride with a gift (morgengab), attended, according to a very questionable interpretation, as the price of her virginity. When Longobard customs came to be affected by the growing influence of the Roman law, the amount of the meta and of the morgengab was restricted. In the age of the communes, the faderfium, now transformed into a dower, was also limited by law. The meta, faderfium, and morgengab belonged to the wife, who could require them to be given up to her on her husband's death. But by a peculiarity of the Germanic law, retained in its entirety even by the Longobards, the Roman regulation, which made the dower the separate and independent property of the wife [even during her husband's lifetime], was never accepted. The only property owned absolutely and exclusively by the woman was what was given her by the husband. The Germanic law favoured the principle of common ownership. As to this, Gans observes:—"It is not necessary with us, as with the Romans, that a woman should have separate property of her own in order to assert her juridical personality, and prove her equality with her husband. She possesses what her husband possesses, and her equality rests on the mutual affection which makes all differences disappear." In the ordeal by combat the husband represented the wife, since she was under the protection of his sword; if she were taken in adultery he might put her to death. All her possessions, movable or immovable, including even nuptial gifts made to her by friends, became the property of her husband, who had only to provide against the contingency of the marriage being dissolved by death: whence the necessity of the meta and the donatium.
If the wife died without issue, everything went to the husband; on the husband's death, the wife was entitled to receive the meta and morgengab (donation). For anything more she was entirely dependent on the generosity of her husband, who, at a later period, was permitted to leave her the half, and, eventually, the whole usufruct of his possessions.
While the marriage laws of the Longobards and the Romans differed thus widely, their laws relating to guardianship were also different. The mundium of the Longobards, as we have seen, is not to be confounded with the tutela to which the Roman woman was subjected. Originating in the incapacity to bear arms, it was of limited duration in the case of males, and ceased with their incapacity. At first the limit was fixed at the age of twelve, at a later period of eighteen years. But for the woman, who could never become capable of bearing arms, it was perpetual. From the mundium of her father, she passed, on marriage, under that of her husband; and on the death of her father, if then a widow, under the mundium of her own son, or of the agnates, who were also her heirs.
In default of other guardians she was protected by the Curtis Regia. But in every case, whether under father, husband, son, agnates, or Curtis Regia, the mundium was identical in character, having for its object the protection of the weak. This could not be said of the Roman tutela, which had its origin in the Roman conception of the family. The tutela of the Roman father over his children lasted all his life; but he could divest himself of it. The mundium of the Longobard father lasted while his children were incapable of bearing arms, and, as a logical consequence, ceased when the incapacity terminated. While it cannot be positively asserted that emancipation was unknown to the Longobards, it may be believed, from the tendency of their law, to have been of rare occurrence. When the Roman woman was subjected to the potestas of her father, the manus of her husband, the tutela of the agnates, there were three kinds of guardianship very different from each other, corresponding with the difference in the domestic relations of those who exercised the right. No one of them had anything in common with the mundium.
The Longobard father had the right to sell his sons; he represented them in courts of law; whatever they acquired was his. But, as we have already shown, his authority was tempered by the family council, in which the brothers of the mother—the children's natural protectress—had much to say.
The Longobard family law has marked peculiarities in regard to succession as well as to marriage. And first, it should be noted that the disposal of property by will was recognised by the Longobards. This seems contrary to the usage of the Germanic tribes, among whom wills were unknown, but may be referred to the modifying action of the Roman on the Longobard law.
The fact, however, that with the Longobards donations and wills were irrevocable, indicates a Germanic character, or rather the trace of it, for the main feature of the Roman will consisted in its revocability. Of the essential principles of the Roman Testamenti factio the Longobards were ignorant. Legitimate children came first in the order of inheritance, and with them came natural children also, the latter—though not in strictness forming part of the family—being admitted to succeed along with the former, though taking a less share. They might, however, be put on an equal footing by being legitimated. At a later period this essentially Germanic peculiarity of the laws of succession was done away with by the action of the Roman and Canon laws, which exclude natural children. Originally, by the Longobard law, a legitimate child took two-thirds of the inheritance, leaving one-third only to the natural children. If there were two legitimate children, the natural children took only a fifth; if three, a seventh.
It was forbidden to leave more than the prescribed share to natural children, and no child could be disinherited without just and manifest cause. The reasons for disinheriting a child were borrowed from the Roman code. It was allowable, however, to favour one son more than the rest.
The preference accorded to males over females is a point of much importance, and is another of the special characteristics of the Longobard law. When the testator had one son and one or more unmarried daughters he was obliged to leave a fourth of the inheritance to the latter, but when there were several sons the daughters only received a seventh part. Married daughters had no right to any share in the inheritance, but had to be content with what they had received on the day of their marriage, and could claim nothing more. Failing male issue, daughters were next heirs, and whether married or single inherited as though they were males. Another peculiarity of Longobard law was the great favour shown to daughters or sisters of the testator domiciled in his house—in capillo. A brother is excluded in favour of a daughter or niece—a remarkable instance of this strange and singular preference accorded to females. We likewise find that unmarried daughters and sisters inherit on equal terms when living under the parental or fraternal roof.
We have already noticed that the statutes of the Italian communes accord, as does also the Longobard law, a decided preference to agnates over cognates, and that this circumstance has given rise to keen discussion. Many persons, indeed, insist on detecting in this preference an absolutely Germanic characteristic transfused into the statutes from the Longobard law. But we have seen that through the greater part of its history the Roman law also gave a preference to the agnates, and that it was only at a very late period that it lost this feature, which was still to some extent retained in Italy at the time of the barbarian invasions. That the preference of the agnates was not borrowed by the statutes from the Longobard law will be even more conclusively shown if we consider the manifest differences which prevail on this very point between the Germanic and the Italian laws; and bear in mind the important fact that the preference continued to increase in strength, at the very time when the action and influence of the Roman law are increasingly apparent in the statutes. In truth, the more closely we examine the matter, the more we are compelled to recognise that it was political reasons altogether peculiar to the Italian communes and to Italian society in the Middle Ages that led to this preference of the agnates. But even here the reciprocal action of the one law upon the other is clearly traceable, for we can perceive that the succession of the agnates, under the Longobard law, has itself been modified by the Roman, which has made it careless of the nature of the property of which the inheritance consists; whereas it is the peculiar and constant characteristic of the Germanic law that such succession should be ruled according both to the degree of kinship and the nature of the inheritance.
In conclusion, it may be said generally that with the Longobards the ties of blood predominate; that in their family there is greater individual freedom, and the family itself is much less affected by the action of the State. With the Romans, on the contrary, the conception of the family is stronger than the ties of blood; the unity of the family depends at first on an absolute paternal despotism, afterwards destroyed by the authority of the State, which to a great extent assumes its place.
From this time the State is predominant in all things; it reduces the family to fragments, and aims at the complete equality of all without having the strength to consolidate a society in which neither individual liberty, local activity, nor free associations were allowed sufficient scope for their development. Yet all these were absolutely necessary for the preservation of a huge social structure made up of distinct races, and consequently destitute of the national character and unity which the Republic and the Empire had imposed. It was precisely these new elements that were introduced among us by the barbarians. And thus it was that two peoples, two forms of family and society, I might almost say two ideas, two wholly different types of society were brought together, of which the one had become the necessary complement of the other. From their forests the Germans brought individual freedom, personal independence, the force of small associations; the Latins had already discovered the unity of the State, the wider and more organic conception of society, and the political idea of the family which we shall see hereafter triumphing in the Commune.
From the fusion of these two different societies that modern society is to arise in which the action of the one is seldom dissociated from that of the other, and it becomes impossible to ascribe the result exclusively to either.