University of Virginia Library

18.22. 22. Of a Civil Law of the German Nations.

I shall here explain how that particular passage of the Salic law which is commonly distinguished by the term The Salic Law relates to the institutions of a people who do not cultivate the earth, or at least who cultivate it but very little.

The Salic law ordains [11] that, when a man has left children behind him, the males shall succeed to the Salic land in preference to the females.

To understand the nature of those Salic lands, there needs no more than to search into the usages or customs of the Franks with regard to lands before they left Germany.

Mr. Echard has very plainly proved that the word Salic is derived from Sala, which signifies a house; and therefore that the Salic land was the land belonging to the house. I shall proceed further, and examine into the nature of the house, and of the land belonging to the house, among the Germans.

"They dwell not in towns," says Tacitus, "nor can they bear to have their habitations contiguous to those of others; every one leaves a space or small piece of ground about his house, which is enclosed." [12] Tacitus is very exact in this account, for many laws of the Barbarian codes have different decrees against those who threw down this enclosure, as well as against such as broke into the house. [13]

We learn from Tacitus and Csar that the lands cultivated by the Germans were given them only for the space of a year, after which they again became public. They had no other patrimony but the house and a piece of land within the enclosure that surrounded it. [14] It was this particular patrimony which belonged to the males. And, indeed, how could it belong to the daughters? They were to pass into another habitation.

The Salic land was then within that enclosure which belonged to a German house; this was the only property they had. The Franks, after their conquests, acquired new possessions, and continued to call them Salic lands.

When the Franks lived in Germany their wealth consisted of slaves, flocks, horses, arms, &c. The habitation and the small portion of land adjoining it were naturally given to the male children who were to dwell there. But afterwards, when the Franks had by conquest acquired large tracts of land, they thought it hard that the daughters and their children should be incapable of enjoying any part of them. Hence it was that they introduced a custom of permitting the father to settle the estate after his death upon his daughter, and her children. They silenced the law; and it appears that these settlements were frequent, since they were entered in the formularies. [15]

Among these formularies I find one of a singular nature. [16] A grandfather ordained by will that his grandchildren should share his inheritance with his sons and daughters. What then became of the Salic law? In those times either it would not be observed, or the continual use of nominating the daughters to an inheritance had made them consider their ability to succeed as a case authorised by custom.

The Salic law had not in view a preference of one sex to the other, much less had it a regard to the perpetuity of a family, a name, or the transmission of land. These things did not enter into the heads of the Germans; it was purely an economical law, which made the house and the land dependent thereon to the males who should dwell in it, and to whom it consequently was of most service.

We need here only transcribe the title of the Allodial Lands of the Salic law; that famous text of which so many have talked, and which so few have read.

"1. If a man dies without issue, his father or mother shall succeed him. 2. If he has neither father nor mother, his brother or sister shall succeed him. 3. If he has neither brother nor sister, the sister of his mother shall succeed him. 4. If his mother has no sister, the sister of his father shall succeed him. 5. If his father has no sister, the nearest relative by the male side shall succeed. 6. Not any part of the Salic land shall pass to the females; but it shall belong to the males; that is, the male children shall succeed their father." [17]

It is plain that the first five articles relate to the inheritance of a man who dies without issue; and the sixth to the succession of him who has children.

When a man dies without children, the law ordains that neither of the two sexes shall have the preference to the other, except in certain cases. In the first two degrees of succession, the advantages of the males and females were the same; in the third and fourth, the females had the preference; and the males in the fifth.

Tacitus points out the source of these extravagances. "The sister's children," says he, "are as dear to their uncle as to their own father. There are men who regard this degree of kindred as more strict, and even more holy. They prefer it when they receive hostages." [18] Hence it proceeds that our earliest historians speak in such strong terms of the love of the kings of the Franks for their sisters and their sisters' children. [19] And, indeed, if the children of the sister were considered in her brother's house as his own children, it was natural for these to regard their aunt as their mother.

The sister of the mother was preferred to the father's sister; this is explained by other texts of the Salic law. When a woman became a widow, [20] she fell under the guardianship of her husband's relatives; the law preferred to this guardianship the relatives by the females before those by the males. Indeed, a woman who entered into a family joining herself with those of her own sex, became more united to her relatives by the female than by the male. Moreover, when a man killed another, and had not wherewithal to pay the pecuniary penalty, the law permitted him to deliver up his substance, and his relatives were to supply the deficiency. [21] After the father, mother, and brother, the sister of the mother was to pay, as if this tie had something in it most tender: now the degree of kindred which imposes the burdens ought also to confer the advantages.

The Salic law enjoins that after the father's sister, the succession should be held by the nearest relative male; but if this relative was beyond the fifth degree, he should not inherit. Thus a female of the fifth degree might inherit to the prejudice of a male of the sixth; and this may be seen in the law of the Ripuarian Franks (a faithful interpreter of the Salic law), under the title of Allodial Lands, where it closely adheres to the Salic law on the same subject. [22]

If the father left issue, the Salic law would have the daughters excluded from the inheritance of the Salic land, and determined that it should belong to the male children.

It would be easy for me to prove that the Salic law did not absolutely exclude the daughters from the possession of the Salic land, but only in the case where they were debarred by their brothers. This appears from the letter of the Salic law; which, after having said that the women shall possess none of the Salic land, but only the males, interprets and restrains itself by adding, "that is, the son shall succeed to the inheritance of the father."

2. The text of the Salic law is cleared up by the law of the Ripuarian Franks, which has also a title on allodial lands very conformable to that of the Salic law. [23]

3. The laws of these barbarous nations who all sprang from Germany interpret each other, more particularly as they all have nearly the same spirit. The Saxon law enjoined the father and mother to leave their inheritance to their son, and not to their daughter; but if there were none but daughters, they were to have the whole inheritance. [24]

4. We have two ancient formularies [25] that state the case in which, according to the Salic law, the daughters were excluded by the males; that is, when they stood in competition with their brother.

5. Another formulary [26] proves that the daughter succeeded to the prejudice of the grandson; she was therefore excluded only by the son.

6. If daughters had been generally debarred by the Salic law from the inheritance of land, it would be impossible to explain the histories, formularies, and charters which are continually mentioning the lands and possessions of the females under the first race.

People have been wrong in asserting that the Salic lands were fiefs. [27] 1. This head is distinguished by the title of allodial lands. 2. Fiefs at first were not hereditary, 3. If the Salic lands had been fiefs, how could Marculfus treat that custom as impious which excluded the women from inheriting, when the males themselves did not succeed to fiefs? 4. The charters which have been cited to prove that the Salic lands were fiefs only show that they were freeholds. 5. Fiefs were not established till after the conquest, and the Salic customs existed long before the Franks left Germany. 6. It was not the Salic law that formed the establishment of fiefs, by setting bounds to the succession of females; but it was the establishment of fiefs that prescribed limits to the succession of females, and to the regulations of the Salic law.

After what has been said, one would not imagine that the perpetual succession of males to the crown of France should have taken its rise from the Salic law. And yet this is a point indubitably certain. I prove it from the several codes of the barbarous nations. The Salic law, [28] and the law of the Burgundians, [29] debarred the daughters from the right of succeeding to the land in conjunction with their brothers; neither did they succeed to the crown. The law of the Visigoths, [30] on the contrary, permitted the daughters to inherit the land with the brothers: [31] and the women were capable of inheriting the crown. [32] Among these people the regulations of the civil law had an effect on the political.

This was not the only case in which the political law of the Franks gave way to the civil. By the Salic law, all the brothers succeeded equally to the land, and this was also decreed by a law of the Burgundians. Thus, in the kingdom of the Franks, and in that of the Burgundians, all the brothers succeeded to the crown, if we except a few murders and usurpations which took place amongst the Burgundians.

Footnotes