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]]
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.
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 champion, she was permitted to walk barefoot over nine red-hot ploughshares[[358]]; and if she was innocent, God would not, of course, allow her to suffer any injury in the act.