Making of a German Constitution : a Slow Revolution

120 • The Making of a German Constitutioncomes in Jacob’s analysis of Wehrgeld (wergild), which readers will recall Eichhornhad identified as one of the five requirements for vollkommene Freiheit. Deemed incapableof bearing arms, women would be shut out of participating in the new arenasof commerce and politics by limiting their access to, and control of, property. ‘Womenunder the oldest law’, Jacob argued ‘were either denied or limited in terms of inheritance.’149 When women did inherit, they always received significantly less than ‘thefather’s son’. 150 Women received only half as much inheritance as the man, and thisextended from their lower value in wergild. For example, in the case where a fatherhad a son and a daughter, the son received two-thirds, the daughter one-third; if hehad a son and two daughters, the son received one-half and both daughters one-halftogether. 151 If a woman did inherit, the effects of her marriage would still deny herfull capacity. Jacob wrote that ‘what property the wife contributed as well as what herfather had given her, became the property of the man.’ 152 Her property was no longerher property but fell under the management and usufruct of her husband. This left thewife’s property under the guardianship of her husband, and this guardianship translatedinto her personal position as a ward of her husband. As a result, a wife’s Fähigkeit waslimited, reflecting her position in the home, and the basis of national order.Jacob painted a vivid and colourful picture of the imagined Gemeinwesen tocome. The union of freemen, in his system, composed the mythical, juristic person,which was the free state. It was nothing more than the Gesammtbürgerschaft andRechtsgenoßenschaft:Outside of the family union, freemen stood amongst each other in a firm communalfraternity, in joint assurance and legal association. Only in the community, to which theybelonged as members, could freemen possess rights and peace. His neighbor was hisequal and his neighbor had common liberties. 153Citing Savigny and Eichhorn’s Einleitung in das deutsche Privatrecht, Jacob explainedthat: ‘Freedom is in truth the capacity to own private property (eigenthumsfähig).’154 ‘On this property’, he continued, ‘hung the wider rights to take part incourt proceedings and people’s assemblies, participation in which the unfree weredenied.’ 155 Women, who were in every way eigenthumsunfähig in Jacob’s system,‘were totally shut out of government over the nation and people’, and were not allowedto take oaths. 156The Age of RecoveryBelow the surface of the Restoration that beset Central Europe after the Congressof Vienna, there was, quietly, going on a recovery of the vaterländisches Recht.Transformationist-minded liberals were no less committed to obtaining political revisionthan the French revolutionaries had been. By the time they embarked on this