Making of a German Constitution : a Slow Revolution

182 • The Making of a German Constitutionwalk amongst the other members of their community. This, in the end, was a strongerimperative in the decision-making process than liberal sociopolitical machinations.In another matter, a wife filed a complaint directly before the Court of Appealsin Celle. 86 Recently married, she had contributed a sizeable cash dowry to her marriage.Apparently, soon after the marriage, the husband took an interest in the guesthousebusiness. The wife complained that, without her knowledge or consent, thehusband had used her dowry to purchase his first cottage. ‘Häuslicher Unfrieden’,as the article colourfully recounted, ensued and it was not long before the husbandhad to move in with his widowed sister. The wife subsequently filed a civil action,demanded the restitution of her property and argued that she was not consulted beforeher husband disposed of her property. Interestingly, the Celle Court of Appealsthrew the case out on a technicality, claiming improper venue, but it still chose toexercise disciplinary jurisdiction over the wife. The court chastised the wife forfiling a claim against her husband and ordered her to pay the cost of the suit. 87While municipal court decisions confirmed the basic property rights of women, theAppeals Court, rigorously, tried to legislate sex guardianship from the bench. Thispractice also contradicted the politics of Germanist legal scholarship, which laidclaim to the people as the source of law.Women in other areas of Central Europe seemed to have found new independentrights as well. In Thuringia and Anhalt, similar legal questions on the statusof women arose in the courts. In a matter put before the Weimar Court in 1857, awife sued and won a claim against her husband. The court awarded the wife damagesbecause the husband had mismanaged a guesthouse that she had contributedto the marriage. 88 An 1858 article in the Blätter für Rechtspfl ege in Thüringen undAnhalt reported that, as a result of decrees from 1729 and 1730, the right of marriedwomen to administer their own property was sanctioned ‘once and for all time’,restoring their rights and capacity. 89 The article pointed out that court decisionsupheld women’s rights to bequeath assets to their biological children even over theobjections of their husbands. 90 In 1867, courts in Saxony upheld married women’srights to swear oaths as to their contributed property and to demand its removalfrom the bankruptcy estate of their husbands. 91 An 1880 article took up the questionof a married woman’s right to sue her husband for repayment of money she loanedhim to start a business. 92Private property had emerged in the systems of Mittermaier, Eichhorn, Grimm,Beseler and others as the cornerstone of all other rights of public participationsociety. It was the prerequisite on which vollkommene Freiheit, in Eichorn’s word,rested. It was not only that liberal political thought appealed to history to justifyexcluding women, but that this body of thought in fact was a reaction against thereality of women’s considerable private property and property rights. Essentially,courts upheld the rights of women to execute testamentary instruments, which asreaders will recall was a pillar of the idea of legislative revolution handed downfrom Niebuhr and others. The demand for male rights and participation must also