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.