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.