III. TRIBAL RULES OF SUCCESSION IN ‘TERRA SALICA.’
The question of the payment of wergeld is now generally admitted to be distinct from that of inheritance in land.
The persons who receive and pay their share of the wergeld are those who would have taken part directly or indirectly in the feud. They are not confined to the expectant heirs of the slayer or the slain.[108]
If we are to learn anything directly upon the question of the method of landholding under Salic custom it must be, not from the clauses relating to the wergelds, but mainly from the Title LIX. De Alodis. It is the next title to the De chrenecruda and can hardly be passed by without some attempt to recognise the bearing of its clauses upon the present inquiry.
Its text is very variously rendered in the several manuscripts, and it has been the subject of many interpretations. But if it may be legitimate to approach it from a strictly tribal point of view, it will not be difficult, I think, to suggest an interpretation consistent with what we have learned of tribal custom from the Cymric example, and therefore worthy at least of careful consideration.
The title ‘De Alodis.’
According to Codex 1 of Hessels and Kern the clauses are as follows:—
(1) Si quis mortuus fuerit et filios non demiserit, si mater sua superfuerit ipsa in hereditatem succedat.
If any one shall have died and not have left sons, if his mother shall have survived let her succeed to the inheritance.
(2) Si mater non fuerit et fratrem aut sororem dimiserit, ipsi in hereditatem succedant.
If the mother shall not be [surviving] and he shall have left brother or sister, let them succeed to the inheritance.
(3) Tunc si ipsi non fuerint, soror matris in hereditatem succedat.
Then, if they shall not be [surviving], let the sister of the mother succeed to the inheritance.
(4) Et inde de illis generationibus quicunque proximior fuerit, ille in hereditatem succedat.
And further concerning these generations, whichever shall be the nearer, let it succeed to the inheritance.
(5) De terra vero nulla in muliere hereditas non pertinebit, sed ad virilem secum (leg. sexum) qui fratres fuerint tota terra perteneunt.
But concerning land no inheritance shall pertain to a woman, but to the male sex who shall be brothers let the whole land pertain.
The last clause in Codex 10 (Herold’s) is amplified as follows:
(5) De terra vero Salica in mulierem nulla portio hæreditatis transit, sed hoc virilis sexus acqviret: hoc est, filii in ipsa hæreditate succedunt. Sed ubi inter nepotes aut pronepotes post longum tempus de alode terræ contentio suscitatur, non per stirpes sed per capita dividantur.
Concerning, however, terra Salica, let no portion of the inheritance pass to a woman, but let the male sex acquire it: i.e. sons succeed to that inheritance. But where after a long time dispute may arise between grandsons or great-grandsons concerning the alod of land, let the division be not per stirpes, but per capita.
The ‘alod’ embraced the whole inheritance—land and cattle, &c.
Now, in the first place, what is meant by the term alod? In the Lex Salica it occurs again in Tit. XCIX. De rebus in alode patris, which relates to a dispute about the right to a certain thing, as to which the decision turns upon the proof that can be given by the defendant that he acquired the thing in alode patris. He has to bring three witnesses to prove ‘quod in alode patris hoc invenisset,’ and three more witnesses to prove ‘qualiter pater suus res ipsas invenisset,’ and if after failure of proof and the interdiction of the law the thing be found in his possession he is to be fined XXXV. solidi.
From this clause the inference must apparently be that the ‘alod of the father’ was the whole bundle of rights and possessions, personal as well as real, which passed to descendants by inheritance. Indeed, it seems to be generally admitted that in the title ‘de alodis’ all the clauses except the last apply to personal property, and only the last to realty.[109]
It was an ancestral family inheritance.
There are titles ‘de alodibus’ both in the Ripuarian Law[110] and in that of the ‘Anglii and Werini.’[111] In both laws the ‘alod’ includes personalty, and the latter defines the personalty as ‘pecunia et mancipia,’ thus reminding us that the personalty of the alod mainly consisted of cattle and slaves. In the title ‘de alodibus’ of the Ripuarian Law, the hereditary or ancestral character of the alod is emphasised by the application to it of the words ‘hereditas aviatica’ There may, however, be some doubt whether the term hereditas aviatica included the whole alod or only the land of the alod.
Regarding, therefore, the ‘alod’ as in some sense a bundle of rights and property, let us try to consider these clauses with a fresh mind in the light of what we have learned of Cymric tribal custom.
The position of females and modifications made in their favour.
Under this custom, speaking broadly, as we have seen, daughters did not share in the landed rights of the gwely. They received instead of landed rights in the gwely their gwaddol or portion, mostly, no doubt, in cattle, and they were supposed with it to marry into another gwely, in whose landed rights their sons were expected to share by paternity. If women inherited landed rights at all, it was exceptionally in the case of failure of male heirs, and then only so that their sons might inherit. The heiress in such a case, under Cymric as well as Greek tribal law, was in quite an exceptional position, and, as we have seen in Beowulf, the sister’s son might be called back into the mother’s family to prevent its failure for want of heirs.[112] The exclusion of female successors from terra Salica is therefore quite in accordance with tribal custom.
That the clauses as to personalty in the ‘de alodis ’ were modifications of ancient Salic custom, made in favour of females, is rendered almost certain by the position of the last clause as a saving clause, apparently inserted with the object of protecting the rights of the sons in the land of the alod, by preventing the application to it of the previous clauses.
The land of the alod was terra.
Codex 1 does not describe the land as terra Salica. It is content to protect land without qualification from the application of the previous clauses, which, if applied to land, would transgress against tribal custom. And the same may be said of Codices 3 and 4. But in the Codices 5 to 10 and in the ‘Lex emendata’ the words ‘terra Salica’ are used.
This is a point of importance, because it goes far to show that the whole of the land of the alod was terra Salica, and protected by the saving clause from participation by females. The use of the word land alone in Codex 1 forbids our thinking that part of the land of the alod was terra Salica and the rest not terra Salica.[113] And this consideration seems to show that to import into the clause any explanation of the term derived from the word Sala, so as to confine its meaning to the ‘Haus und Hofland’ or the ‘Väterliches Wohnhaus,’ as Amira[114] and Lamprecht[115] would do, would be misleading. The homestead of the chief of a tribal family holding, on terra Salica, may, like the Roman villa, have passed by various and even natural stages into the ‘Herrengut,’ or ‘terra indominicata’ of later manorial phraseology, and the term terra Salica may have clung, as it were, to it. But to reason backwards to the Lex Salica from the instances of its later use, given by Guérard in his sections on the subject, seems in this case, if I may venture to say so, to be a reversal of the right order of inference. Lamprecht carefully guards himself against the view that the terra Salica of the Lex was as yet a ‘Herrengut,’ and Guérard, in his careful sections on the subject, admits three stages in the evolution of the terra Salica: (1) ‘l’enceinte dépendant de la maison du Germain;’ (2) ‘la terre du manse seigneurial;’ (3) ‘simplement la terre possédée en propre, quelquefois donnée en tenure.’[116]
This may in some sense fairly represent the line of evolution subsequently followed, and I have long ago recognised the embryo manor in the ‘Germania’ of Tacitus; but, for our present purpose, this does not seem to help to an understanding of the term as used in the Lex Salica.
When all the Codices are taken together into account, terra Salica seems to include the whole of the land, or landed rights, of the alod. From the whole, and not only the chief homestead, the succession of females is excluded, and it is the whole, and not the chief homestead only, which is to be divided between the nepotes and pronepotes of the deceased tribesman.
Approaching the Lex Salica, as we are doing, from a tribal point of view, we seem to get upon quite other and simpler ground.
Terra Salica was land held under the rules of the Lex Salica and subject ultimately to division per capita between great-grandchildren.
The emphasis laid in the Lex Salica upon the distinction in social status between persons ‘living under the Lex Salica’ and those living under Roman law suggests that land held under the Lex Salica was not held under the same rules as those under which the ‘Romanus possessor’ held his ‘res propria.’ It would seem natural, then, that terra Salica should be land held under Salic custom as opposed to land held under Roman law. And if this be the simple rendering of the term terra Salica in the Lex, then returning to the likeness of the Salic ‘alod’ to the Cymric family holding some likeness might be expected in the rules of succession to the land of the alod when compared with the Cymric rules of succession to the ‘tir gweliauc’ or family land of the gwely.
We have seen that in the gwely the descendants of a common great-grandfather were kept together as a family group till, after internal divisions between brothers and then between cousins, there was at last equal division of landed rights between second cousins, i.e. great-grandsons of the original head of the gwely. The fact of this right of redivision at last between great-grandchildren was apparently what held the family group together till the third generation.
The last clause of the ‘de alodis,’ even as it stands in Codex 1, coincides with Cymric custom in so far as it excludes females from landed rights and confines inheritance in the land of the alod in the first instance to sons ‘… qui fratres fuerint.’
And when at last later Codices call the land of the alod terra Salica, and the addition in Codex 10 is taken into account, the evidence becomes very strong indeed that under Salic custom the land of the alod or terra Salica was held as a family holding, and, like the land of the gwely, divisible, first between sons, then between grandsons, and at last between great-grandsons.
But when among grandsons or great-grandsons contention arises, after long time, concerning the alod of land, they [the lands of the alod] should be divided, not per stirpes, but per capita.
The later the date at which this sentence was added to the final clause of the ‘de alodis,’ the stronger becomes the evidence of what ancient Salic custom on this matter was.
The final clause protects the family holding.
Assuredly the object of these words is not to introduce a new principle. They obviously describe ancient Salic custom in order to protect it. And how could a division per capita amongst great-grandsons take place unless, as in the Cymric gwely, the holding of terra Salica had during the whole period of the three generations been kept in some sense together as a family holding?
It would be unwise to press analogies between Cymric and Salic tribal custom too far, but I have before pointed out that a system of wergelds, to which paternal and maternal relatives each individually contributed their share, seems to imply an original solidarity of kindred, which must, wherever it was fully in force, have been connected with a corresponding solidarity in the occupation of land, together with its complement, an individual ownership of cattle. And in the light of the ‘de alodis’ it does not seem unlikely that it may have been so under ancient Salic custom.
Distinction between land under Salic and land under Roman law.
If the foregoing considerations be accepted, may we not recognise in the term terra Salica, as at first used, a meaning analogous to that which Professor Vinogradoff has recently so brilliantly given to the Anglo-Saxon term ‘folc-land’?[117] In both cases surely it was natural that there should be a term distinguishing land still held under the rules of ancient tribal custom from land held under the Romanised rules of individual landownership.
It is not necessary to do more than allude here to the various clauses of the Lex Salica from which the existence of individual holdings is clearly to be inferred. If, from this single mention of terra Salica and its ultimate division among great-grandsons per capita, the continued existence of tribal or family holdings held still under Salic law may be legitimately inferred, it is at least equally clear that the Romanus possessor who lived and held his possession as res propria under Roman law also existed. And if so the two classes of holders of land must often have been neighbours. The vicini, ‘qui in villa consistunt,’ of the title ‘de migrantibus’ (XLV.) may some of them have been of the one class and some of them of the other. The objection of a single person living under Salic law to the interloper would have a new meaning and become very natural if the conflict between the two systems were involved. And when we have reminded ourselves of these facts the title De eum qui se de parentilla tollere vult, to which allusion has already been made, which enabled the tribesman, by the somewhat theatrical action of breaking the four sticks of alder over his head, to cut himself loose from his parentilla, takes its proper place as evidence of the temptation which must have beset the young tribesman in close contact with Gallo-Roman neighbours to free himself from what had come to be regarded as a bondage, and to take an independent position as an individual under the new order of things which was fast undermining the old.
Edict of Chilperic A.D. 561-584.
Besides the title ‘de alodis’ there is another source of information which must not be overlooked—viz. the Edict of Chilperic (A.D. 561-584).[118]
This edict appears to have been issued soon after the extension of the Frankish boundary from the Loire to the Garonne, and specially to apply to the newly conquered district.
Admission of female succession to prevent Salic land from passing from the family group to strangers.
This conquest would necessarily extend the area within which Salic settlements would be made among non-Salic neighbours, and multiply the cases in which even a Salic Frank might find himself less securely surrounded by kinsmen than of old. Under these altered circumstances instances would become more and more frequent of the close neighbourhood of tribesmen still holding under Salic custom and strangers living under Roman laws of succession. The clauses of the edict seem accordingly to be directly intended to prevent lapsed interests of Salic tribesmen in land from falling to the vicini when there were brothers or female relations surviving. In old times in purely Salic settlements lapsed interests must usually have become merged in the general rights of the kindred, the vicini being kinsmen. And no harm might come of it. Landed rights would seldom have passed away from the kindred. But as the stranger element increased in prominence the kindreds would more and more suffer loss. Hence probably the extended rights given by the edict to female relatives. It allows them to succeed in certain cases so as to prevent the land, or, as we should rather say, the landed rights, from lapsing to the vicini.
Clause 3 is as follows:—
Simili modo placuit atque convenit, ut si quicumque vicinos habens aut filios aut filias post obitum suum superstitutus fuerit, quamdiu filii advixerint terra habeant, sicut et Lex Salica habet.
Likewise we will and declare that if any one having vicini, or sons or daughters, shall be succeeded to after his death, so long as the sons live let them have the land as the Lex Salica provides.
So far evidently no change is made; old custom still holds good. But in the rest of the clauses a modification is made evidently to meet altered circumstances, and specially to shut out the vicini.
Et si subito filii defuncti fuerint, filia simili modo accipiat terras ipsas, sicut et filii si vivi fuissent aut habuissent. Et si moritur, frater alter superstitutus fuerit, frater terras accipiat, non vicini. Et subito frater moriens frater non derelinquerit superstitem, tunc soror ad terra ipsa accedat possidenda.…
And if suddenly the sons shall have died let the daughter receive those lands as the sons would have done had they been alive. And if he not the vicini. And if suddenly the brother shall die not leaving a brother surviving, then let a sister succeed to the possession of that land.…
The remainder of the clause is very difficult to construe in the imperfect state of the text, and it is not necessary to dwell upon it. It seems to apply to newcomers (‘qui adveniunt’) and their rights inter se.[119]
We have then in these clauses an allusion to ancient tribal custom as well as to the change made necessary by the new circumstances.
Analogy of Cymric custom.
The implication is that under the rule of ancient custom, on a brother’s death without children, his brothers did not succeed to his land, but the vicini. Now the brother is to succeed, not the vicini.
At first sight this seems unnatural and unlikely. But it ceases to be so if we may regard the alod of terra Salica as a family holding under conditions somewhat like those of the gwely. For under Cymric custom the brother did not succeed to the childless brother as his heir. The co-inheritors, as far as second cousins, were his heirs. In other words the lapsed share went to his vicini, but they were the kinsmen of his own gwely.[120]
Nor did a brother succeed to his brother’s da, and the grazing rights and homestead connected with it. He had received this da, as we have seen, from his chief of kindred by ‘kin and descent,’ i.e. by tribal right in his kindred, and therefore if he should die without children his da and everything he had by kin and descent went, not to his brothers, but back to the kindred or the chief of kindred from whom he received it.
If the son die after 14 years of age and leave no heir, his ‘argluyd’ is to possess all his da and to be in place of a son to him and his house becomes a dead-house. (Ven. Code, i. p. 203.)[121]
The lapse of landed rights in family holdings to the kindred was one thing. Their passing out of the kindred to vicini who were strangers would be quite another thing.
When after a time, let us say under cover of the title ‘de migrantibus’ or upon extended conquests, others, perhaps ‘Romani possessores,’ had taken places in the villa side by side with the tribesmen living under the customary rules of terra Salica, or when Salic Franks had settled among strangers, the new element would have to be reckoned with.
In the clause ‘de migrantibus’ the protection of ancient Salic custom was sought by the exclusion of strangers at the instance of a single objector from terra Salica. In the Edict of Chilperic, on the other hand, the presence of stranger vicini was taken for granted, and the protection of terra Salica sought by extending the right of succession to brothers and females, so that at least fewer cases might arise of lapsed inheritances falling away from the kindred into the hands of the vicini who might be strangers.
The breaking up of tribal custom thus was not all at once, but by steps. At first terra Salica was limited to men, then female succession was allowed, and lastly, in default of kindred, stranger vicini under certain conditions were admitted to the lapsed inheritance.