this act of violence by a fine of 900 solidi; 45 times the wehrgeld of the man assaulted on the road.

In the customs of the middle ages, which have preserved the wehrgeld, the woman's life is valued at only half that of the man. Herr Gaupp attributes this inferiority to Biblical influences, and rightly so; Christian laws have done much for women, but they have never admitted them to an equality with men.

Said St. Ambrose, "Adam was deceived by Eve and not Eve by Adam. It is right that he who was invited by the woman to sin, should be her governor, that he may not a second time fall a victim to female weakness of character."

These words of the Saint, which are quoted in the "Decretals," are the summary of a doctrine which was dominant during the whole of the middle ages, and I could accumulate quotations in proof of this until you were tired, but I fear to turn the subject into ridicule.

If the reader bears in mind our ideas concerning the basis of civil capacity, he must comprehend that in the aboriginal era it must have been null, as formerly among the early Romans. The civil capacity of women presupposes (does it not?) the relaxation or the entire absence of the political tie of the family.

Before women can have a recognised individuality, there must be a strongly organised State, and the family must not be a little State in itself.

Such was not the case among the nations of the conquest, and it was impossible that women, in those early times, could have had civil rights of the smallest kind. Where could these rights have been exercised? In the family? but in order that she might be an active member, she must have had an arm to wield a sword. In the assembly of the Canton? But every dispute might terminate in a single combat, and to be a soldier was an indispensable condition of the right to be present at the assembly; yet it was in this assembly that the most important civil acts were performed. Necessarily, then, the civil capacity of women was restricted in the extreme, except in the countries which remained faithful to the Roman law, such as Italy, Spain, and the south of France.

In the countries in which the Teutonic customs ruled, the status of women was something analagous to that of the women of the early Romans; nevertheless, there was this profound difference between them, namely, the difference of theory on which the family was based in their respective systems of legislation.

* Author of a work on Saxon laws and institutions. ·

With the Romans the head of the family was everything, the woman was a nobody; she is hardly more than a chattel, or, if you prefer it, the chief slave. With the Germans, where the head of the fantily is only a guardian, the woman is a ward; her person is not dependent as with the Romans, but she needs a guardian to defend her, and represent her interests in certain acts which are transacted in the public meeting of the Canton, from which women were excluded.

The perpetual wardship of women, in a more or less severe form, is met with in all the Teutonic customs, but it is especially among the Lombards that this institution took the most emphatic, I might almost say the most Roman form.

Every woman who lived under the Lombard law, must have a guardian. The wife's guardian is her husband; the daughter's, her father; the sister's her brother; the widow's her husband's relatives, unless she enfranchises herself from this foreign tutelage by abandoning half the metha she received on her marriage.

In default of father, brother or son, the paternal agnate took the place of guardian; in default of agnates, the king's courts of law did so. This principle, which is not peculiar to the Lombard law, reigned in Europe during the middle ages, and still subsists in England.

The king was the natural guardian of women without relations, of widows without guardians, and of orphans.

What is peculiar in this rigorous right of wardship in the Lombard Code, is the part which the brother's power plays therein, a power which we shall find reappear in our feudal laws, which were faithful conservators of the Teutonic spirit. The brother continues the representative of the father; it is he who gives his sisters in marriage at his pleasure, and without consulting them, just as their father could have done. If he portions his sisters they cease to have a claim on the paternal inheritance, but by a very curious consequence, the sisters, who occupy towards their brother the legal position of a daughter, succeed to their brother as a daughter would do, and share equally with their nieces, This right is singular, and I do not recollect to have found its counterpart in any other code.

It is especially on the subject of marriage that the Teutonic wardship appears to be rigorous; one may say that it was more severe for the person than the property, for it did not hinder the woman from disposing of all or a part of her fortune, as the Roman wardship did, while it was more severe, if anything, than the latter, in what related to marriage.

The Thuringian Code says:

"If a free woman shall marry without the consent of her father or guardian, she shall lose all her present and reversionary property."

The Burgundian law is only so severe as this towards the Roman woman; if the woman who has married without her guardian's consent is a German, the husband atones by paying a triple price for the wardship. The Saxon law is similar, but it would seem that in cases of widows marrying again, it was more lenient.

In the Sachsenspiegel, the wardship of women preserves its primitive aspect the widow falls into the power of the agnates of her line; but this power is much weakened, and is little more than the right of assisting the widow in lawsuits. Subsequently, we see the widow acquiring the right of choosing for herself this next friend from among her nearest relatives. Let her choose a next friend for herself where she pleases and for so long as she pleases, says an old custom of Germany.

In the early municipal customs of France, Spain, and Flanders (I except Italy, where the aristocratic spirit kept alive in the cities many a feudal usage), women have a great independence, greater even than in the centuries which come after. The Roman law dealt the final blow to what still remained of ancient Teutonic rigour. In Germany, however, the perpetual wardship of women was preserved until recently in some towns of Swabia, in Saxony, in Holstein, in Silesia, in Wurtemberg, and in Baden; but on all sides protests were raised against the institution, which clashes with our ideas, and which, besides, after the modifications it has received in the course of time, was only an incumbrance to the statute book.

§ 3. OF THEIR CIVIC CAPACITY.

As to what I have called civic capacity, it stands to reason that it could not have existed in a society which was organised on a military basis, as was the barbarian society. The women could not give evidence, for to give evidence was generally to do battle. It was the husband, father, or guardian who took the oath, or who fought for the woman subjected to tutelage.

The Burgundian Code differs from the other customs in that it allows the wife or the mother to swear for her husband or her son when accused. A similar custom found its way into the Lombard Code, and Luitprand seems to tolerate it, since he only punishes him who has administered an oath to a woman, when he has acted without the consent of her guardian.

When a woman is accused, she defends herself either by the test of hot iron or by water; or, again, by champions, and even, if she have the courage, she may don the armour and fight like a man; but in this last case, the Bavarian Code only grants her a simple Wehrgeld, that is to say, the Wehrgeld of a man, whose strength and courage she possesses.

* That is to say, a woman of the conquered race.-TRANSLATOR.

That there were sometimes such valiant heroines, is proved by a passage of the Schwabenspiegel, which formally authorises the woman to accept the trial by duel, and some souvenirs of these singular feats of arms, which have come down to us. But such examples are exceptions, and in general, so long as the judicial duel lasted, the lot of the woman was decided by champions.

§ 4-POLITICAL Rights.—The Daughter's RIGHTS TO THE THRONE.

In cases where there are no civil rights, there can be no political rights. Accordingly, I cannot see that among the Franks, where women were excluded from the allodial heritage, they ever raised the slightest pretension to the throne. The Teutonic king commanded, it is true, not less by reason of his vast estates, than by reason of the rights conferred by the bishops upon him as the successor of the Emperors of the West; but the world was too close to the Roman era to allow of the idea of property absorbing that of sovereignty. The theory that a woman could take the command was not developed till later, when the feudal system, having been long in operation, had so confounded the two theories of proprietary and sovereign right in that of feudal right, that they had become inseparable, and that the right of command followed the right to the property. Besides, in those early times, what was a German king but a leader of a band, who must be distinguished for his love of adventure and hardihood, if he was to retain around him those comrades who constituted the force and ornament of his savage court.

Accordingly there is no controversy about the succession of women to the throne during the first centuries after the Frankish conquest; and although the king's daughters were often excluded from the throne, we do not see that they ever protested against the exclusion. The law, then, was beyond doubt.

I do not allude to cases of daughters competing with sons, for it is manifest that the same law which gave the heritage to the sons, also gave them the crown ; but when daughters found themselves opposed by collaterals, their uncles, for instance, or their male cousins, their right was not acknowledged a whit the more. Their exclusion was based upon a national characteristic. Agathias, in his history, informs us that Childebert, King of Austrasia, and son of Clovis, left two daughters who did not inherit his power, which, in default of a son, descended to their uncle, King Clotaire; the two daughters passed under the tutelage of their cousin Charibert, King of Paris.

Thomas, in his work on "Duels," has given a description of a manuscript in the library of Wolfenbüttel, in which is found the painting of a combat between a man and a woman.

Charibert left three daughters, neither of them inherited his kingdom, which was fought for by their two uncles, Sigebert, and Chilperic. Gontran, the King of Burgundy, had three daughters, when, with a sigh that he had no sons, he designated his nephew Childebert as his successor. Chilperic had lost all his sons, two daughters still remained to him, when he replied to the ambassadors of the aforesaid Childebert; 66 Since my sons are gone, King Childebert, my brother's son, must be my sole heir."

These examples are enough to demonstrate that the succession to the throne was governed by the principles applicable to the succession to the allodium, and that there was no distinction between them. The land belonged to the nearest male agnate; it was the same with the sovereignty, which depended on the immense crown estates which the king shared among his comrades, and which withdrew from the Merovingian dynasty from the day when the mayor of the palace, a mere domestic officer in the beginning, became the dispenser of the fiefs.

All that I have just said concerning the first race of French kings, is applicable to the second; Louis le Debonnaire succeeded alone to Charlemagne's vast empire, although the latter left seven daughters whom he dearly loved; and, from Louis le Debonnaire to the third dynasty, I know of no woman who raised claims to the throne. The first instance of such a claim occurs only at the commencement of the feudal period, when Boson, Count of Provence, took advantage of his marriage with Hermengarde, the only daughter of the Emperor Louis II., to get himself appointed King of Arles. Moreover, we do not see from the memorials of the epoch that he formally founded his claim on his wife's right, and, for the rest, his claims were utterly negatived by his rivals. The right of women to the crown was never recognised in France, and it was always a maxim of State, as laid down by Froissart, "that the realm of France is of such great nobility that it can never devolve by inheritance upon a woman." This rule is as old as the monarchy itself, and is without an exception.

This exclusion of women appears in the countries where the right of inheritance was not so rigorous as among the Franks. Among the Ostrogoths, for instance, women do not succeed to the throne, although they succeed to landed property; and this exclusion doubtless rests upon the theory that with this people, as with the Romans, the empire remained a command and a magistracy. But there is perceptible among the Gothic races a great tendency to preserve the crown in one family, and I think that in Italy, as in Spain, the free succession to the throne is subject to certain restrictions. These restrictions in the

* The Emperor Louis II. died A.D. 875, without leaving male heirs.-TRANSLATOR.