Making of a German Constitution : a Slow Revolution

Undermining Absolutism • 153subsequent bourgeois laws. 154 Illegitimate children also were victims to the new civilcode. The provisions on Erbrecht denied illegitimate children the right to inheritfrom the paternal line. 155 Whereas noble women inherited property, exercised independentcontrol of that property and bequeathed it to others, liberals disavowed theserights for women in theory and in practice.It is important not to forget women in our political analysis of the liberal challengeto the old order. As Bush writes, no distinction was made between noble menand women with regard to privileges, and the privileges of noble women were targetedas well. 156 The new provisions of civil law resembled the customary laws thatwere identified by the Germanists. Instead of conferring the right to property andto contract freely upon women, civil marriage denied most women these rights andgave control of their property to their husbands. Paragraph 1655 of the BGBS read:‘The husband has the right of usufruct and management of the property, which thewife possessed at the time of the closing of the marriage or acquires during the marriage.’157 Not only did the husband have the right to manage the wife’s property, butany earnings that accrued to her property or through her labor belonged to him. Moreover,Paragraph 1656 read: ‘All of the tangible things in the house, in case of doubt,belong to the husband’ with the exception of the wife’s personal effects. 158 The factthat women were denied full independent property rights meant that they were alsodenied basic public rights. Under Paragraph 1638, women could not execute legaltransactions with third parties without the consent of their husbands, denying themthe right of freedom to contract. 159 Paragraph 1641 legislated that a business enteredinto by a woman without the consent of her husband was invalid before the law. 160Moreover, women were denied the right to possess an independent name and statusunder Paragraph 1623, which required that they take the name and class of their husbands.161 Under Paragraph 1645, women were accorded the right to contract withoutthe consent of their husbands only so long as it involved ‘the aim of the managementof the household’. 162 This was the so-called Schlüsselgewalt, but again women wereonly the Schlüsselträgerinnen of their husbands. These measures did not reflect theindependent civil rights women had enjoyed before 1865. Moreover, these provisionswere not designed to give women power in the home, but rather to confine them to itand deny them basic legal personality and participation rights.In response to this legislation, voices of opposition were raised in Saxony. Upuntil 1865, Germanist theory on the place of women in society had only been talk.After the promulgation of the BGBS, however, the unequal separation of the sexesbecame a living reality in Saxony. The BGBS set a trend in gender legislation towardthe denial of women’s civil rights, a trend that continued until a new Law of Associationswas promulgated in 1908. While the response of women will not be discussedin this chapter, the legislated denial of rights under civil law that Saxony’s womenfaced for the first time in 1865 offers an additional explanation as to why the AllgemeinerDeutscher Frauenverein (ADF) was founded in Leipzig that same year. Theconvention was composed largely of working women, who were the hardest hit by