The spirit of laws by Charles de Secondat, Baron de Montesquieu

particular passage of the Salic law which is commonly distinguished by

Download 3.53 Mb.
Size3.53 Mb.
1   ...   21   22   23   24   25   26   27   28   ...   62

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 C├Žsar 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

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

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.

23. Of the regal Ornaments among the Franks. A people who do not

cultivate the land have no idea of luxury. We may see, in Tacitus, the
admirable simplicity of the German nations: they had no artificial
elegances of dress; their ornaments were derived from nature. If the
family of their chief was to be distinguished by any sign, it was no
other than that which nature bestowed. The kings of the Franks, of the
Burgundians, and the Visigoths wore their long hair for a diadem.

24. Of the Marriages of the Kings of the Franks. I have already

mentioned that with people who do not cultivate the earth, marriages are
less fixed than with others, and that they generally take many wives.
"Of all the barbarous nations the Germans were almost the only people
who were satisfied with one wife,[33] if we except," says Tacitus, "some
persons who, not from a dissoluteness of manners, but because of their
nobility, had many."[34]

This explains the reason why the kings of the first race had so great a

number of wives. These marriages were less a proof of incontinence than
a consequence of dignity: and it would have wounded them in a tender
point to have deprived them of such a prerogative.[35] This also
explains the reason why the example of the kings was not followed by the

25. Childeric. "The laws of matrimony amongst the Germans," says

Tacitus, "are strictly observed. Vice is not there a subject of
ridicule. To corrupt or be corrupted is not called fashion, or the
custom of the age:[36] there are few examples in this populous nation of
the violation of conjugal faith."[37]

This was the reason of the expulsion of Childeric: he shocked their

rigid virtue, which conquest had not had time to corrupt.

26. Of the Time when the Kings of the Franks became of age. Barbarians

who do not cultivate the earth have, strictly speaking, no jurisdiction,
and are, as we have already remembered, rather governed by the law of
nations than by civil institutions. They are, therefore, always armed.
Thus Tacitus tells us "that the Germans undertook no affairs either of a
public or private nature unarmed."[38] They gave their vote by the sound
of their arms.[39] As soon as they could carry them, they were presented
to the assembly;[40] they put a javelin into their hands;[41] and from
that moment they were out of their minority: they had been a part of the
family, now they became a part of the republic.[42]

"The eagles," said the king of the Ostrogoths,[43] "cease to feed their

young ones as soon as their wings and talons are formed; the latter have
no need of assistance when they are able themselves to seize their prey:
it would be a disgrace if the young people in our armies were thought to
be of an age unfit for managing their estates or regulating the conduct
of their lives. It is virtue that constitutes full age among the Goths."

Childebert II was fifteen years old when Gontram, his uncle, declared

that he was of age, and capable of governing by himself.[44] We find in
the Ripuarian laws that the age of fifteen, the ability of bearing arms,
and majority, went together. It is there said[45] "that if a Ripuarian
dies, or is killed, and leaves a son behind him, that son can neither
prosecute, nor be prosecuted, till he has completely attained the age of
fifteen; and then he may either answer for himself or choose a
champion." It was necessary that his mind should be sufficiently formed
to be able to defend himself in court; and that his body should have all
the strength that was proper for his defence in single combat. Among the
Burgundians,[46] who also made use of this combat in their judiciary
proceedings, they were of age at fifteen.

Agathias tells us that the arms of the Franks were light: they might,

therefore, be of age at fifteen. In succeeding times the arms they made
use of were heavy, and they were already greatly so in the time of
Charlemagne, as appears by our capitularies and romances. Those who had
fiefs,[47] and were consequently obliged to do military service, were
not then of age till they were twenty-one years old.[48]

27. The same Subject continued. We have seen that the Germans did not

appear in their assemblies before they were of age; they were a part of
the family, but not of the republic. This was the reason that the
children of Clodomir, king of Orleans, and conqueror of Burgundy, were
not proclaimed kings, because they were of too tender an age to be
present at the assembly. They were not yet kings, but they had a right
to the regal dignity as soon as they were able to bear arms; and in the
meantime, Clotildis, their grandmother, governed the state.[49] But
their uncles Clotarius and Childebert assassinated them, and divided
their kingdom. This was the cause that in the following ages princes in
their minority were proclaimed kings immediately after the death of
their fathers. Thus Duke Gondovald saved Childebert II from the cruelty
of Chilperic, and caused him to be proclaimed king when he was only five
years old.[50]

But even in this change they followed the original spirit of the nation;

for the public acts did not pass in the name of the young monarch. So
that the Franks had a double administration: the one which concerned the
person of the infant king, and the other which regarded the kingdom; and
in the fiefs there was a difference between the guardianship and the
civil administration.

28. Of Adoption among the Germans. As the Germans became of age by the

wielding of arms, so they were adopted by the same sign. Thus Gontram,
willing to declare his nephew Childebert of age and to adopt him for his
son, made use of these words: "I have put this javelin into thy hands as
a token that I have given thee all my kingdom."[51] Then, turning
towards the assembly, he added, "You see that my son Childebert is grown
a man; obey him." Theodoric, king of the Ostrogoths, intending to adopt
the king of the Heruli, wrote to him thus:[52] "It is a noble custom of
ours to be adopted by arms; for men of courage alone deserve to be our
children. Such is the efficacy of this act, that whoever is the object
of it had rather die than submit to anything ignominious. Therefore, in
compliance with the national usage, and because you are a man of
courage, we adopt you for our son by these bucklers, these swords, these
horses, which we send you as a present."

29. Of the sanguinary Temper of the Kings of the Franks. Clovis was not

the only prince amongst the Franks who had invaded Gaul. Many of his
relatives had penetrated into this country with particular tribes; but
as he had met with much greater success, and could grant considerable
settlements to such as followed him, the Franks flocked to him from all
Directory: mrhomepage.nsf

Share with your friends:
1   ...   21   22   23   24   25   26   27   28   ...   62

The database is protected by copyright © 2020
send message

    Main page