The Spirit Of Laws Part 9
We may likewise see in the history of China that the emperors5 sent Chinese colonies into Tartary. These Chinese have become Tartars, and the mortal enemies of China; but this does not prevent their carrying into Tartary the spirit of the Chinese government.
A part of the Tartars who were conquerors have very often been themselves expelled; when they have carried into their deserts that servile spirit which they had acquired in the climate of slavery. The history of China furnishes us with strong proofs of this a.s.sertion, as does also our ancient history.6 Hence it follows that the genius of the Getic or Tartarian nation has always resembled that of the empires of Asia. The people in these are governed by the cudgel; the inhabitants of Tartary by whips. The spirit of Europe has ever been contrary to these manners; and in all ages, what the people of Asia have called punishment those of Europe have deemed the most outrageous abuse.7 The Tartars who destroyed the Grecian Empire established in the conquered countries slavery and despotic power: the Goths, after subduing the Roman Empire, founded monarchy and liberty.
I do not know whether the famous Rudbeck, who in his "Atlantica" has bestowed such praises on Scandinavia, has made mention of that great prerogative which ought to set this people above all the nations upon earth; namely, this country's having been the source of the liberties of Europe-that is, of almost all the freedom which at present subsists amongst mankind.
Jornadez the Goth called the north of Europe the forge of the human race.8 I should rather call it the forge where those weapons were framed which broke the chains of southern nations. In the North were formed those valiant people who sallied forth and deserted their countries to destroy tyrants and slaves, and to teach men that, nature having made them equal, reason could not render them dependent, except where it was necessary to their happiness.
6.-A new physical Cause of the Slavery of Asia, and of the Liberty of Europe In Asia they have always had great empires; in Europe these could never subsist. Asia has larger plains; it is cut out into much more extensive divisions by mountains and seas; and as it lies more to the south, its springs are more easily dried up; the mountains are less covered with snow; and the rivers being not so large form more contracted barriers.9 Power in Asia ought, then, to be always despotic: for if their slavery was not severe they would make a division inconsistent with the nature of the country.
In Europe the natural division forms many nations of a moderate extent, in which the ruling by laws is not incompatible with the maintenance of the state: on the contrary, it is so favorable to it, that without this the state would fall into decay, and become a prey to its neighbors.
It is this which has formed a genius for liberty that renders every part extremely difficult to be subdued and subjected to a foreign power, otherwise than by the laws and the advantage of commerce.
On the contrary, there reigns in Asia a servile spirit, which they have never been able to shake off, and it is impossible to find in all the histories of that country a single pa.s.sage which discovers a freedom of spirit; we shall never see anything there but the excess of slavery.
7.-Of Africa and America This is what I had to say of Asia and Europe. Africa is in a climate like that of the south of Asia, and is in the same servitude. America,10 being lately destroyed and re-peopled by the nations of Europe and Africa, can now scarcely display its genuine spirit; but what we know of its ancient history is very conformable to our principles.
8.-Of the Capital of the Empire One of the consequences of what we have been mentioning is, that it is of the utmost importance to a great prince to make a proper choice of the seat of his empire. He who places it to the southward will be in danger of losing the north; but he who fixes it on the north may easily preserve the south. I do not speak of particular cases. In mechanics there are frictions by which the effects of the theory are frequently changed or r.e.t.a.r.ded; and policy has also its frictions.
1 Du Halde, vol i. p. 112.
2 The Chinese books make mention of this. Ibid.
3 See "Travels to the North," vol. viii.; the "Hist. of the Tartars"; and Du Halde, vol. iv.
4 Tartary is, then, a kind of flat mountain.
5 As Vouty V, Emperor of the fifth dynasty.
6 The Scythians thrice conquered Asia, and thrice were driven thence, Justin, lib. II.
7 This is in no way contrary to what I shall say in book XXVIII. chap. xx. concerning the manner of thinking among the German nations in respect to the cudgel; let the instrument be what it will, the power or action of beating was always considered by them as an affront.
8 "Humani generis officinam."
9 The waters lose themselves or evaporate before or after their streams are united.
10 The petty barbarous nations of America are called by the Spaniards "Indios Bravos," and are much more difficult to subdue than the great empiress of Mexico and Peru.
Book XVIII
Of Laws in the Relation they Bear to the Nature of the Soil 1.-How the Nature of the Soil has an Influence on the Laws THE goodness of the land, in any country, naturally establishes subjection and dependence. The husbandmen, who compose the princ.i.p.al part of the people, are not very jealous of their liberty; they are too busy and too intent on their own private affairs. A country which overflows with wealth is afraid of pillage, afraid of an army. "Who is there that forms this goodly party?" said Cicero to Atticus;1 "are they the men of commerce and husbandry? Let us not imagine that these are averse to monarchy-these to whom all governments are equal, as soon as they bestow tranquillity."
Thus monarchy is more frequently found in fruitful countries, and a republican government in those which are not so; and this is sometimes a sufficient compensation for the inconveniences they suffer by the sterility of the land.
The barrenness of the Attic soil established there a democracy; and the fertility of that of Lacedaemonia an aristocratic const.i.tution. For in those times Greece was averse to the government of a single person, and aristocracy bore the nearest resemblance to that government.
Plutarch says2 that the Cilonian sedition having been appeased at Athens, the city fell into its ancient dissensions, and was divided into as many parties as there were kinds of land in Attica. The men who inhabited the eminences would, by all means, have a popular government; those of the flat, open country demanded a government composed of the chiefs; and they who were near the sea desired a mixture of both.
2.-The same Subject continued These fertile provinces are always of a level surface, where the inhabitants are unable to dispute against a stronger power; they are then obliged to submit; and when they have once submitted, the spirit of liberty cannot return; the wealth of the country is a pledge of their fidelity. But in mountainous districts, as they have but little, they may preserve what they have. The liberty they enjoy, or, in other words, the government they are under, is the only blessing worthy of their defence. It reigns, therefore, more in mountainous and rugged countries than in those which nature seems to have most favored.
The mountaineers preserve a more moderate government, because they are not so liable to be conquered. They defend themselves easily, and are attacked with difficulty; ammunition and provisions are collected and carried against them with great expense, for the country furnishes none. It is, then, a more arduous, a more dangerous, enterprise to make war against them; and all the laws that can be enacted for the safety of the people are there of least use.
3.-What Countries are best cultivated Countries are not cultivated in proportion to their fertility, but to their liberty; and if we make an imaginary division of the earth, we shall be astonished to see in most ages deserts in the most fruitful parts, and great nations in those where nature sems to refuse everything.
It is natural for a people to leave a bad soil to seek a better, and not to leave a good soil to go in search of worse. Most invasions have, therefore, been made in countries which nature seems to have formed for happiness, and as nothing is more nearly allied than desolation and invasion, the best provinces are most frequently depopulated, while the frightful countries of the North continue always inhabited, from their being almost uninhabitable.
We find by what historians tell us of the pa.s.sage of the people of Scandinavia along the banks of the Danube that this was not a conquest, but only a migration into desert countries.
These happy climates must, therefore, have been depopulated by other migrations, though we know not the tragic scenes that happened.
"It appears by many monuments of antiquity," says Aristotle,3 "that the Sardinians were a Grecian colony. They were formerly very rich; and Aristeus, so famed for his love of agriculture, was their law-giver. But they have since fallen to decay; for the Carthaginians, becoming their masters, destroyed everything proper for the nourishment of man, and forbade the cultivation of the lands on pain of death." Sardinia was not recovered in the time of Aristotle, nor is it to this day.
The most temperate parts of Persia, Turkey, Muscovy, and Poland have not been able to recover perfectly from the devastations of the Tartars.
4.-New Effects of the Fertility and Barrenness of Countries The barrenness of the earth renders men industrious, sober, inured to hardship, courageous, and fit for war; they are obliged to procure by labor what the earth refuses to bestow spontaneously. The fertility of a country gives ease, effeminacy, and a certain fondness for the preservation of life. It has been remarked that the German troops raised in those places where the peasants are rich, as, for instance, in Saxony, are not so good as the others. Military laws may provide against this inconvenience by a more severe discipline.
5.-Of the Inhabitants of Islands The inhabitants of islands have a higher relish for liberty than those of the continent. Islands are commonly of small extent;4 one part of the people cannot be so easily employed to oppress the other; the sea separates them from great empires; tyranny cannot so well support itself within a small compa.s.s: conquerors are stopped by the sea; and the islanders, being without the reach of their arms, more easily preserve their own laws.
6.-Of Countries raised by the Industry of Man Those countries which the industry of man has rendered habitable, and which stand in need of the same industry to provide for their subsistence, require a mild and moderate government. There are princ.i.p.ally three of this species: the two fine provinces of Kiang-nan and Tsekiang in China, Egypt, and Holland.
The ancient emperors of China were not conquerors. The first thing they did to aggrandize themselves was what gave the highest proof of their wisdom. They raised from beneath the waters two of the finest provinces of the empire; these owe their existence to the labor of man. And it is the inexpressible fertility of these two provinces which has given Europe such ideas of the felicity of that vast country. But a continual and necessary care to preserve from destruction so considerable a part of the empire demanded rather the manners of a wise than of a voluptuous nation, rather the lawful authority of a monarch than the tyrannic sway of a despotic prince. Power was, therefore, necessarily moderated in that country, as it was formerly in Egypt, and as it is now in Holland, which nature has made to attend to herself, and not to be abandoned to negligence or caprice.
Thus, in spite of the climate of China, where they are naturally led to a servile obedience; in spite of the apprehensions which follow too great an extent of empire, the first legislators of this country were obliged to make excellent laws, and the government was frequently obliged to follow them.
7.-Of human Industry Mankind by their industry, and by the influence of good laws, have rendered the earth more proper for their abode. We see rivers flow where there have been lakes and marshes: this is a benefit which nature has not bestowed; but it is a benefit maintained and supplied by nature. When the Persians5 were masters of Asia, they permitted those who conveyed a spring to any place which had not been watered before to enjoy the benefit for five generations; and as a number of rivulets flowed from Mount Taurus, they spared no expense in directing the course of their streams. At this day, without knowing how they came thither, they are found in the fields and gardens.
Thus, as destructive nations produce evils more durable than themselves, the actions of an industrious people are the source of blessings which last when they are no more.
8.-The general Relation of Laws The laws have a very great relation to the manner in which the several nations procure their subsistence. There should be a code of laws of a much larger extent for a nation attached to trade and navigation than for people who are content with cultivating the earth. There should be a much greater for the latter than for those who subsist by their flocks and herds. There must be a still greater for these than for such as live by hunting.
9.-Of the Soil of America The cause of there being such a number of savage nations in America is the fertility of the earth, which spontaneously produces many fruits capable of affording them nourishment. If the women cultivate a spot of land round their cottages, the maize grows up presently; and hunting and fishing put the men in a state of complete abundance. Besides, black cattle, as cows, buffaloes, etc., thrive there better than carnivorous beasts. The latter have always reigned in Africa.
We should not, I believe, have all these advantages in Europe if the land was left uncultivated; it would scarcely produce anything besides forests of oaks and other barren trees.
10.-Of Population in the Relation it bears to the Manner of procuring Subsistence Let us see in what proportion countries are peopled where the inhabitants do not cultivate the earth. As the produce of uncultivated land is to that of land improved by culture, so the number of savages in one country is to that of husbandmen in another: and when the people who cultivate the land cultivate also the arts, this is also in such proportions as would require a minute detail.
They can scarcely form a great nation. If they are herdsmen and shepherds, they have need of an extensive country to furnish subsistence for a small number; if they live by hunting, their number must be still less, and in order to find the means of life they must const.i.tute a very small nation.
Their country commonly abounds with forests, which, as the inhabitants have not the art of draining off the waters, are filled with bogs; here each troop canton themselves, and form a petty nation.
Their country commonly abounds with forests, which, as the inhabitants have not the art of draining off the waters, are filled with bogs; here each troop canton themselves, and form a petty nation.
11.-Of savage and barbarous Nations There is this difference between savage and barbarous nations: the former are dispersed clans, which for some particular reason cannot be joined in a body; and the latter are commonly small nations, capable of being united. The savages are generally hunters; the barbarians are herdsmen and shepherds.
This appears plain in the north of Asia. The people of Siberia cannot live in bodies, because they are unable to find subsistence; the Tartars may live in bodies for some time, because their herds and flocks may for a time be rea.s.sembled. All the clans may then be reunited, and this is effected when one chief has subdued many others; after which they may do two things-either separate, or set out with a design to make a great conquest in some southern empire.
12.-Of the Law of Nations amongst People who do not cultivate the Earth As these people do not live in circ.u.mscribed territories, many causes of strife arise between them; they quarrel about waste land as we about inheritances. Thus they find frequent occasions for war, in disputes in relation either to their hunting, their fishing, the pasture for their cattle, or the violent seizing of their slaves; and as they are not possessed of landed property, they have many things to regulate by the law of nations, and but few to decide by the civil law.
13.-Of the Civil Laws of those Nations who do not cultivate the Earth The division of lands is what princ.i.p.ally increases the civil code. Amongst nations where they have not made this division there are very few civil laws.
The inst.i.tutions of these people may be called manners rather than laws.
Amongst such nations as these the old men, who remember things past, have great authority; they cannot there be distinguished by wealth, but by wisdom and valor.
These people wander and disperse themselves in pasture grounds or in forests. Marriage cannot there have the security which it has amongst us, where it is fixed by the habitation, and where the wife continues in one house; they may then more easily change their wives, possess many, and sometimes mix indifferently like brutes.
Nations of herdsmen and shepherds cannot leave their cattle, which are their subsistence; neither can they separate themselves from their wives, who look after them. All this ought, then, to go together, especially as, living generally in a flat open country, where there are few places of considerable strength, their wives, their children, their flocks, may become the prey of their enemies.
The laws regulate the division of plunder, and give, like our Salic laws, a particular attention to theft.
14.-Of the political State of the People who do not cultivate the Land These people enjoy great liberty; for as they do not cultivate the earth, they are not fixed: they are wanderers and vagabonds; and if a chief should deprive them of their liberty, they would immediately go and seek it under another, or retire into the woods, and there live with their families. The liberty of the man is so great among these people that it necessarily draws after it that of the citizen.
15.-Of People who know the Use of Money Aristippus being cast away, swam and got safely to the next sh.o.r.e, where, beholding geometrical figures traced in the sand, he was seized with a transport of joy, judging that he was amongst Greeks, and not in a nation of barbarians.
Should you ever happen to be cast by some adventure amongst an unknown people; upon seeing a piece of money you may be a.s.sured that you have arrived in a civilized country.
The culture of lands requires the use of money. This culture supposes many inventions and many degrees of knowledge; and we always see ingenuity, the arts, and a sense of want making their progress with an equal pace. All this conduces to the establishment of a sign of value.
Torrents and eruptions have led to the discovery that metals are contained in the bowels of the earth.6 When once they have been separated, they have easily been applied to their proper use.
16.-Of Civil Laws amongst People who know not the Use of Money When a people have not the use of money, they are seldom acquainted with any other injustice than that which arises from violence: and the weak, by uniting, defend themselves from its effects. They have nothing there but political regulations. But where money is established, they are subject to that injustice which proceeds from craft-an injustice that may be exercised in a thousand ways. Hence they are forced to have good civil laws, which spring up with the new practices of iniquity.
In countries where they have no specie, the robber takes only bare movables, which have no mutual resemblance. But where they make use of money, the robber takes the signs, and these always resemble each other. In the former nothing can be concealed, because the robber takes along with him the proofs of his conviction; but in the latter it is quite the contrary.
17.-Of political Laws amongst Nations who have not the Use of Money The greatest security of the liberties of a people who do not cultivate the earth is their not knowing the use of money. What is gained by hunting, fishing, or keeping herds of cattle cannot be a.s.sembled in such great quant.i.ty, nor be sufficiently preserved, for one man to find himself in a condition to corrupt many others: but when, instead of this, a man has a sign of riches, he may obtain a large quant.i.ty of these signs, and distribute them as he pleases.
The people who have no money have but few wants; and these are supplied with ease, and in an equal manner. Equality is then unavoidable; and hence it proceeds that their chiefs are not despotic.
If what travellers tell us be true, the const.i.tution of a nation of Louisiana, called the Natchez, is an exception to this. Their chief disposes of the goods of all his subjects, and obliges them to work and toil, according to his pleasure.7 He has a power like that of the grand seignior, and they cannot even refuse him their heads. When the presumptive heir enters the world, they devote all the sucking children to his service during his life. One would imagine that this is the great Sesostris. He is treated in his cottage with as much ceremony as an emperor of j.a.pan or China.
18.-Of the Power of Superst.i.tion The prejudices of superst.i.tion are superior to all others, and have the strongest influence on the human mind. Thus, though the savage nations have naturally no knowledge of despotic tyranny, still they feel the weight of it. They adore the sun; and if their chief had not imagined that he was the brother of this glorious luminary, they would have thought him a wretch like themselves.
19.-Of the Liberty of the Arabs and the Servitude of the Tartars The Arabs and Tartars are nations of herdsmen and shepherds. The Arabs find themselves in that situation of which we have been speaking, and are, therefore, free; whilst the Tartars (the most singular people on earth) are involved in a political slavery.8 I have already given reasons for this,9 and shall now a.s.sign some others.
They have no towns, no forests, and but few marshes; their rivers are generally frozen, and they dwell in a level country of an immense extent. They have pasture for their herds and flocks, and consequently property; but they have no kind of retreat, or place of safety. A khan is no sooner overcome than they cut off his head; his children are treated in the same manner,10 and all his subjects belong to the conqueror. These are not condemned to a civil slavery, for in that case they would be a burden to a simple people, who have no lands to cultivate, and no need of any domestic service. They, therefore, add to the bulk of the nation; but, instead of civil servitude, a political slavery must naturally be introduced amongst them.
It is apparent that in a country where the several clans make continual war, and are perpetually conquering each other; in a country where, by the death of the chief, the body politic of the vanquished clan is always destroyed, the nation in general can enjoy but little freedom; for there is not a single party that must not have been often subdued.
A conquered people may preserve some degree of liberty when, by the strength of their situation, they are in a state that will admit of capitulating after their defeat. But the Tartars, always defenceless, being once overcome can never be able to obtain conditions.
I have said, in chapter 2, that the inhabitants of cultivated plains are seldom free. Circ.u.mstances have occurred to put the Tartars, who dwell in uncultivated plains, in the same situation.
20.-Of the Law of Nations as practised by the Tartars The Tartars appear to be mild and humane amongst themselves; and yet they are most cruel conquerors: when they take cities they put the inhabitants to the sword, and imagine that they act humanely if they only sell the people, or distribute them amongst their soldiers.
They have destroyed Asia, from India even to the Mediterranean; and all the country which forms the east of Persia they have rendered a desert.
The law of nations is owing, I think, to the following cause. These people having no towns, all their wars are carried on with eagerness and impetuosity. They fight whenever they hope to conquer; and when they have no such hope, they join the stronger army. With such customs, it is contrary to the law of nations that a city incapable of repelling their attack should stop their progress. They regard not cities as an a.s.sociation of inhabitants, but as places made to bid defiance to their power. They besiege them without military skill, and expose themselves greatly in the attack; and, therefore, revenge themselves on all those who have spilled their blood.
21.-The Civil Law of the Tartars Father Du Halde says that amongst the Tartars the youngest of the males is always the heir, by reason that as soon as the elder brothers are capable of leading a pastoral life they leave the house with a certain number of cattle, given them by their father, and build a new habitation. The last of the males, who continues at home with the father, is then his natural heir.
I have heard that a like custom was also observed in some small districts of England; and we find it still in Brittany, in the Duchy of Rohan, where it obtains with regard to ign.o.ble tenures. This is doubtless a pastoral law conveyed thither by some of the people of Britain, or established by some German nation. By Caesar and Tacitus we are informed that the latter cultivated but little land.
22.-Of a Civil Law of the German Nations I shall here explain how that particular pa.s.sage of the Salic law which is commonly distinguished by the term "the Salic law" relates to the inst.i.tutions of a people who do not cultivate the earth, or at least who cultivate it but very little.
The Salic law ordains11 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 s.p.a.ce or small piece of ground about his house, which is inclosed."12 Tacitus is very exact in this account, for many laws of the barbarian codes have different decrees against those who threw down this inclosure, as well as against such as broke into the house.13 We learn from Tacitus and Caesar that the lands cultivated by the Germans were given them only for the s.p.a.ce of a year, after which they again became public. They had no other patrimony but the house and a piece of land within the inclosure 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 pa.s.s into another habitation.
The Salic land was then within that inclosure 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 lands.
When the Franks lived in Germany their wealth consisted of slaves, flocks, horses, arms, etc. 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 Amongst 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 authorized by custom.
The Salic law had not in view a preference of one s.e.x 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 t.i.tle 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 pa.s.s 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 s.e.xes 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 s.e.x, 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 t.i.tle 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. 1. 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 t.i.tle 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 inheritances.24 4. We have two ancient formularies25 that state the case in which, according to the Salic law, the daughters were excluded by the males; that is, when they stood in compet.i.tion with their brother.
5. Another formulary26 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 a.s.serting that the Salic lands were fiefs.27 1. This head is distinguished by the t.i.tle 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.