Montesquieu

I shall now explain how this par­ti­cu­lar part of the Salic law that is ordi­na­rily cal­led the Salic law rela­tes to the ins­ti­tu­tions of a peo­ple which did not till the land, or at least very lit­tle.

When a man lea­ves chil­dren, the Salic law would have the males suc­ceed to Salic land in pre­fe­rence to the daugh­ters.1

To know what Salic lands were, you have to find out what the pro­per­ties or uses of the land were among the Franks before they had emer­ged from Germania.

Mr. Echard has firmly pro­ven that the word Salic deri­ves from the word sala, which means house, and that Salic land was thus the land of the house.2 I shall go fur­ther and exa­mine what the house was, and the land of the house, among the Germans.

“They do not dwell in cities,” says Tacitus, “and they can­not bear having their hou­ses adjoi­ning each other ; each man lea­ves a small par­cel or space around his house that is enclo­sed and locked.”3 Tacitus spoke cor­rectly, for seve­ral laws in the bar­ba­rian codes have dif­fe­rent pro­vi­sions against those who broke down this enclo­sure and those who broke into the house itself.4

We know from Tacitus and Cæsar that the lands which the Germans culti­va­ted were allo­ca­ted to them for only a year, after which they rever­ted to the public. As patri­mony, they had nothing but the house and a par­cel of land within the enclo­sure sur­roun­ding the house.5 It was this par­ti­cu­lar patri­mony which belon­ged to the males. Indeed, why would it have belon­ged to the daugh­ters ? They moved on to some other house.

Salic land was thus this enclo­sure, which was a depen­dency of the German’s house ; it was the only pro­perty he had. After the conquest, the Franks acqui­red new pro­per­ties and conti­nued to call them Salic lands.

When the Franks lived in Germania, their pro­per­ties were sla­ves, herds, hor­ses and wea­pons, etc. The house and the small par­cel of land adjoi­ning it were natu­rally left to the male chil­dren who would inha­bit them. But when, after the conquest, the Franks had acqui­red vast lands, it was consi­de­red unfair that the daugh­ters and their chil­dren should have no share of them. A prac­tice came into being which allo­wed the father to recall his daugh­ter and his daugh­ter’s chil­dren. The law was silen­ced ; and these sorts of recalls had to be com­mon, since for­mu­las were made of them.6

Among all these for­mu­las I find one that is sin­gu­lar.7 A grand­fa­ther recalls his grand­chil­dren to suc­ceed him along with his sons and daugh­ters. Where then was the Salic law ? It must be that in those times it was no lon­ger obser­ved, or that the conti­nual prac­tice of recal­ling daugh­ters had led to their eli­gi­bi­lity to inhe­rit being consi­de­red the most com­mon situa­tion.

The pur­pose of the Salic law was not a cer­tain pre­fe­rence of one sex over the other, and even less the per­pe­tuity of a family, name, or trans­mis­sion of land. None of that had ente­red the Germans’ heads : it was a purely eco­no­mic law, which gave the house and its adja­cent land to the males who were to live there, and for whom conse­quently it was the most appro­priate.

We need do no more here than cite the title of the Salic law on allod lands, that famous text which so many peo­ple have tal­ked about, and which so few have read :

If a man dies child­less, 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, his mother’s sis­ter shall suc­ceed him.

(4) If his mother has no sis­ter, his father’s sis­ter shall suc­ceed him.

(5) If his father has no sis­ter, the clo­sest kin on the male side shall suc­ceed him.

(6) No por­tion of Salic land shall pass to fema­les, but it shall belong to the males, which is to say that male chil­dren shall suc­ceed their fathers.8

It is clear that the first five arti­cles relate to the suc­ces­sion of the man who dies child­less, and the sixth to the suc­ces­sion of the man who has chil­dren.

According to the law, when a man died child­less, one of the two sexes was to have pre­fe­rence over the other only in cer­tain cases. In the two first degrees of suc­ces­sion, the advan­ta­ges of males and fema­les were the same ; in the third and fourth, women had the pre­fe­rence, and the males had it in the fifth.

I find the seeds of these oddi­ties in Tacitus : “The sis­ters’ chil­dren,” he says, “are as dear to their uncle as to their own father. There are those who find this bond clo­ser and even more sacred ; they pre­fer it when they receive hos­ta­ges.”9 That is why our ear­liest his­to­rians speak to us so often of the love of the Frankish kings for their sis­ter and their sis­ter’s chil­dren.10 Now if the sis­ters’ chil­dren were trea­ted in the house as the chil­dren them­sel­ves, it was natu­ral for the chil­dren to treat their aunt like their own mother.

The mother’s sis­ter was given pre­fe­rence over the father’s sis­ter ; this can be explai­ned by other texts in the Salic law : when a woman was a widow, she came under the guar­dian­ship of her hus­band’s kin ; for this guar­dian­ship, the law pre­fer­red kin on the female side to kin on the male side.11 Indeed, a woman who ente­red a family, joi­ning with per­sons of her sex, was more clo­sely tied to kin on the female side than on the male side. Moreover, when one man had killed ano­ther, and had no means of satis­fying the fine he had incur­red, the law allo­wed him to give up his pos­ses­sions, and his family had to make up for any short­fall.12 After the father, the mother, and the bro­ther, it was the mother’s sis­ter who paid, as if there were some­thing more inti­mate about that bond ; for the kin­ship that impo­ses bur­dens must also have confer­red advan­ta­ges.

According to the Salic law, after the father’s sis­ter, the clo­sest kin on the male side was to have the suc­ces­sion ; but if he were kin beyond the fifth remove, he did not inhe­rit. Thus, a woman of the fifth remove would have inhe­ri­ted in pre­fe­rence to a male of the sixth, and this is seen in the law of the Ripuarian Franks,13 the fai­th­ful inter­pre­ter of the Salic law, in the title on allods, where it fol­lows step by step the same title in the Salic law.

If the father left chil­dren, his daugh­ters, accor­ding to the Salic law, were to be exclu­ded from suc­ces­sion to Salic land, and it would belong to the male chil­dren.

I can rea­dily prove that the Salic law does not cate­go­ri­cally exclude daugh­ters from Salic land, but solely in the case where bro­thers would exclude them. We see this in the Salic law itself, which, after sta­ting that women would pos­sess none of the Salic land, but only the males, inter­prets and res­tricts itself : “which is to say,” it adds, “that the son shall inhe­rit the father’s legacy.”

2nd. The text of the Salic law is cla­ri­fied by the law of the Ripuarian Franks, which also inclu­des a title on allods14 quite consis­tent with that of the Salic law.

3rd. The laws of these bar­ba­rian peo­ples, all of which ema­nate from Germania, are mutually inter­pre­ta­tive, espe­cially since they all embody more or less the same spi­rit. In the law of the Saxons, the father and mother leave their legacy to their son and not to their daugh­ter ; but if there are only daugh­ters, they are to have the entire legacy.15

4th. We have two ancient for­mu­las that raise the case where, accor­ding to the Salic law, daugh­ters are exclu­ded by the males : that is when they are rival­ling their bro­ther.16

5th. Another for­mula pro­ves that the daugh­ter suc­cee­ded in pre­fe­rence to the grand­son ; she was the­re­fore exclu­ded only by the son.17

6th. If daugh­ters had gene­rally been exclu­ded by the Salic law from suc­ces­sion to lands, it would be impos­si­ble to explain the his­to­ries, for­mu­las, and char­ters which speak cons­tantly of the lands and pro­per­ties of women in the first dynasty.

We have been wrong to claim that the Salic lands were fiefs.18 1st. This title is label­led On allods. 2nd. In the begin­ning fiefs were not here­di­tary. 3rd. If the Salic lands had been fiefs, how could Malculfe have cal­led impious the cus­tom that exclu­ded women from suc­cee­ding to them, since even the males did not suc­ceed to fiefs ? 4th. The char­ters which peo­ple cite to prove that the Salic lands were fiefs prove only that they were free­holds. 5th. Fiefs were esta­bli­shed only after the conquest, and the Salic prac­ti­ces exis­ted before the Franks had left Germania. 6th. It was not the Salic law which by limi­ting the suc­ces­sion of women cons­ti­tu­ted the esta­blish­ment of fiefs ; but it was the esta­blish­ment of fiefs that put limits on the suc­ces­sion of women and the pro­vi­sions of the Salic law.

After what we have just said, one would not think that the per­so­nal suc­ces­sion of males to the French crown could have come from the Salic law. Yet it is beyond doubt that it does. I can prove it with the various codes of the bar­ba­rian peo­ples. The Salic law19 and the law of the Burgundians20 did not give daugh­ters the right to inhe­rit land with their bro­thers, nei­ther did they inhe­rit the crown ; the law of the Visigoths,21 on the contrary,22 allo­wed daugh­ters to inhe­rit lands with their bro­thers ; women were able to suc­ceed to the crown. Among these peo­ples the pro­vi­sion of civil law for­ced the poli­ti­cal law.

This was not the only case where the poli­ti­cal law among the Franks yiel­ded to the civil law. By pro­vi­sion of the Salic law, all bro­thers equally inhe­ri­ted the land, and that was also the pro­vi­sion of the law of the Burgundians. And in the Frankish monar­chy as well as the Burgundian, all bro­thers suc­cee­ded to the crown, if we except a few acts of vio­lence, mur­ders, and usur­pa­tions among the Burgundians.

Tit. 72.

[Johann Georg von Eckhart published numerous linguistic and philological works, among them Commentarii de rebus Franciæ Orientalis et episcopatus Wirceburgensis (1729).]

Nullas Germanorum populis urbes habitari satis notum est, ne pati quidem inter se junctas sedes ; colunt discreti, ut nemus placuit. Vicos locant, non in nostrum morem connexis et cohœrentibus ædificiis, suam quisque domum spatio circumdat. [‘It is well known that the nations of Germany have no cities, and that they do not even tolerate closely contiguous dwellings. They live scattered and apart, just as a spring or a wood has attracted them. Their villages they do not arrange in our fashion, with the buildings connected and joined together, but every person surrounds his dwelling with an open space.’ — trans.Thomas Gordon] (De moribus Germanorum [chapter xvi].)

Leges Alamannorum, ch. x, and Leges Baiwariorum, tit. 10, §1 and 2.

This enclosure is called cortis in the charters.

See Marculfus, book II form. 10 and 12, Appendice de Marculfus, formula 49, and the ancient formulas called Sirmondi, formula 22.

Form. 55 in the Lindenbroch compendium.

De terra vero Salica in mulierem nulla portio hereditatis transit, sed hoc virilis sexus acquirit, hoc est filii in ipsa hereditate succedunt, tit. 62, §6.

Sororum filiis idem apud avunculum quam apud patrem honor. Quidam sanctiorem arctioremque hunc nexum sanguinis arbitrantur, et in accipiendis obsidibus magis exigunt, tanquam ii et animum firmiùs et domum latiùs teneant. [‘Sister’s sons are held in as much esteem by their uncles as by their fathers ; indeed, some regard the relation as even more sacred and binding, and prefer it in receiving hostages, thinking thus to secure a stronger hold on the affections and a wider bond for the family.’] (De moribus Germanorum [ch. xx].)

See Gregory of Tours, book VIII, ch. xviii and xx ; book IX, ch. xvi and xx, the furies of Guntram over the ill treatment received by his niece Ingunda at the hands of Lenvigilda, and how Childebert her brother waged war to avenge her.

Salic law, tit. 47.

Ibid., tit. 61, §1.

Et deinceps usque ad quintum genuculum qui proximus fuerit in hereditatem succedat (title 56, §36).

Tit. 56.

Tit. 7, §1. Pater aut mater defuncti, filio non filiæ hereditatem relinquant ; §4, qui defunctus, non filios, sed filias reliquerit, ad eas omnis hereditas pertineat.

In Marculfus, book II, formula 12, and in Marculfus appendix, formula 49.

In the Lindenbroch compendium, formula 55.

Ducange, Pithou, etc.

Title 62.

Tit. 1, §3, tit. 14, §1, and tit. 51.

Book IV, tit. 2, §1.

The Germanic nations, says Tacitus, had common practices ; they also had some particular ones.