Making of a German Constitution : a Slow Revolution

232 • The Making of a German Constitutionspecifically stated that ‘parental power belongs to the mother’ only in the instanceof the father’s death or forfeiture of his rights accompanied by the dissolution of themarriage. 103 The protest article, ‘Aufruf!’, that appeared in Die Frauenbewegungduly noted that the BGB ‘spoke of elterliche Gewalt but that the exercise of thispower is vested solely in the father; he alone will control and decide all of the children’slife and educational questions’. 104Moreover, it was necessary again to pay attention to the fine print in the otherparagraphs. While there was no such provision for male parents, in the case of afather’s death or absence, Paragraph 1687 provided for the appointment of a ‘supplementaryguardian’, if for example the father requested the same at the ‘time of hisdeath’, (Paragraph 1777) or ‘special reasons’, (Paragraph 1687.3) such as the managementof property. 105 Paragraph 1688 made the Guardianship Court’s authorityover women absolute: ‘the supplementary guardian may be appointed for all kindsof affairs, for certain kinds of affairs, or for special affairs.’ 106 ‘The supplementaryguardian’, according to Paragraph 1689, ‘shall, within the scope of his authority,assist and supervise the mother in her exercise of the parental power.’ 107 Moreover,Paragraph 1697 decreed that ‘the mother loses the parental power if she remarries’;in effect, she would lose her children. 108 No such penalty was meted out against therights of fathers to remarry. Indeed, under the BGB only the Hausherr was free andunrestricted, and even in the instance of the father’s death, parental authority did nottransfer to the mother.It is worth noting also that the BGB placed considerable limitations on fathersrelative to their children’s property and held them accountable to the GuardianshipCourt, yet another manifestation of exclusive bürgerliche rule. Indeed, underParagraph 1668, the court could require fathers to put up security for the propertysubjected to his management. 109 If a father failed to comply with any order of theGuardianship Court, his rights could be rescinded and, what is more, under Paragraph1674, even the judge of the Guardianship Court could be held liable for negligencein the protection of a child’s property. 110 The property of children, therefore,was far more secure than the property of their mothers. Indeed, they seemed to havebeen somewhat better positioned, insofar as a father’s management and usufructrights could be revoked for mistreatment of the child.The BGB depended heavily on Germanist principles, and the obligations that accompaniedguardianship over children entailed the exercise of considerable publiccivil rights, especially the management and usufruct of property. Under Paragraph1630 in the fathers’ section, ‘the care of the child’s person and property [included]the right to represent him.’ 111 In the case of his right to management and usufruct, thisinvolved the representation of child before the state, whether in the execution of negotiableinstruments or in a court of law, which, in turn, required the right to swear oaths.Mothers were not construed as guardians under the BGB, but rather only as statutoryagents. Under Paragraph 1676, ‘the right to take care of the person of the child belongsto both the father and the statutory agent (i.e., the mother if her marriage with