Page images

between the two powers, for, in the earliest times, it seems that the mundium was, in relation to persons, what seisin (investitura) was in relation to property, that is to say a sort of seisin applied to persons, the right of defending them and of guaranteeing them against all, as if they were his property, his chattels, in a word, a power quite in the paternal interest, like the patria potestas of the Romans; but at the epoch of the conquest, this power had lost its sternness. The rights of blood were no longer sacrificed; and if, in the twilight of barbarian times, it seems that the father exercised over his family an absolute authority, one cannot help seeing that when once Christianity arose, all atrocities disappeared before this great light.

The head is not, like the paterfamilias, the master of his wife and children, he is only their protector (mundoaldus) ; his power is entirely a protectorate, established for the protégé, and not for the protector. Accordingly we must not think of that Roman severity which left to the son no individuality, and transformed the child into an instrument of labour, incapable of earning except for the master who wields it ; there is nothing like this in the Teutonic customs ; the wife and the son are persons quite distinct from the husband and the father, and nothing is more frequent than to see the children acquire an independent fortune, and dispose of it at their pleasure.

Such a prerogative naturally ceases when the child no longer needs protection ; when, for example, he comes of age, or when he sets up an independent establishment. The daughter's marriage, in like manner, emancipates her ; but in certain laws, which have preserved their ancient strictness, this marriage depends solely on the father, who is not obliged to consult his daughter, for this reason : “because it is not credible that a father would give to any man his daughter, or a brother his sister, with a bad intent or against reason, poor reasoning ! because it takes no account of human passions, and rests on the hypothesis that men will always do what they ought to do.


$ 3.-OF THE MARRIAGE PORTION (FADERFIUM). When a father gives his daughter in marriage, he is not bound to give her a portion ; on the contrary, it is for him to receive from the husband the price of the mundium, as I shall narrate in the following chapter. This custom is universal in all the codes of the North where the Roman element had not penetrated ; and when an eloper takes a daughter without her father's consent, the latter, by virtue of the mundium, which remains with him, can claim back his child, with damages. And, if the girl dies before the ravisher has acquired the mundium by compounding with her father, the children are bastards, and as such in the power of

[ocr errors][merged small]

their maternal grandfather, who can, moreover, demand for his dead child a wehrgeld of 400 solidi ; so ordains the law of the Alemanni. Those of the Visigoths and the Lombards are not less precise.

It was Christianity which, in this respect, modified the absolutism of paternal power. As the sacrament played the principal part in the marriage, the right of the father was obliged to yield to the fait accompli, the same having been consecrated by the Church.

"When a youth has attained the age of 14, he may take a wife without his father's consent, and if he has not a father, but only a guardian, he can also take a wife without that guardian's consent.

“If the marriage has been consummated, it is indissoluble ; otherwise the two spouses may be separated.

“A girl is marriageable at 12 years of age, and the marriage is valid, although contracted against the will of the father and the other relatives."

These declarations are extracted from the Mirror of Swabia, which is à faithful echo of canonical ideas.

The right to the property always follows the right to the person, and it was inevitable that as the latter became weakened, the former should also give way. A law of Canute's forbids the father to sell his daughter to the husband; the other barbarian customs being also modified by Christian influence, allot to the wife the present made by the fiancé, and transform into a dowry this donation, which originally went to the profit of the father. I shall revert to this subject below.

Moreover, in proportion as Roman civilisation gained ground, the custom of portioning the daughter was introduced—a custom which is the antipodes of Teutonic ideas. Several laws concern themselves with the regulation of this donation, which recalls, in more than one respect, the dos profectitia of the Romans. * In a capitulary, added by Childebert to the Salic law, and in which the Roman influence is plainly traceable, we see the marriage portion favoured to such an extent, that it forms a préciput and privileged succession.f The Lombard law, also, authorises this donation of the father's, but, more faithful to Teutonic principles, it determines that this gift should stand instead of the child's share in the paternal estate, a severity which we shall find in more than one code of the middle ages.

This exclusion was, moreover, only established for the benefit of the sons, and when there were none but daughters to take part in the paternal estate, the married daughter brought back the gift she had received from her father (the faderfium, as the Lombard code termed

* In the German Customs, this donation of the father's bears the name of Heimsteuer, or Aussteuer.

A préciput is an advantage which the testator or the law of inheritance gives to one of the co-heirs and co-heiresses above the others, with whom, nevertheless, she shares in the remainder of the inheritance.-TRANSLATOR.


it), and threw it into hotch-potch, and then divided equally with her sisters.

At the death of the wife, the faderfium belonged to the children, and the husband could put in no claim to it. In default of children, the marriage portion returned to the family of the donor.

Rotharis, 1. 121. —"And, if there be legitimate children of the said woman, let them have the morzengab and the faderfium of their mother ; and, if there be no children, let the right of succession revert to the relatives who gave her in marriage ; and, if there be no relatives, then let the aforesaid right of succession revert to the king's treasury."

This last provision is unjust; and the Lombard law is the only one, perhaps, which failed to recognise that the husband's rights were more sacred than the interests of the royal treasury. § 4.—THE PRINCIPLE OF THE RIGHT OF SUCCESSION AMONG

THE TEUTONS. “ They are bound,” says Tacitus, in one of those passages of the “Germania," which best reveal the exactness of his observation, “to embrace the hatreds as well as the friendships of a father or a relative.”

“Moreover, these hatreds are not implacable ; even homicide is atoned for by a fixed amount of grain or small cattle ; and this compensation is accepted by the whole family-a policy which is so much the more wise, as enmities are more dangerous in the condition of liberty which they enjoy."

This mutuality of defence is the basis of the Teutonic law of inheritance; I have already so given it to be understood, but I insist upon this point, because it alone is able to explain the laws of succession among the barbarians.

To inherit is the privilege of the active members of the family-of the braves who carry the sword; the mutual obligation of defence is the condition of this privilege. He who renounces the oath of allegiance, his seat at the family council, his common right and duty of vengeance, has no longer any share in the inheritance, for the obligations cannot be renounced without at the same time abandoning the benefits; and this renunciation ought to be public, for it is a political abjuration which interests the whole canton. Says the Salic law

"If any one wishes to renounce his family ties, let him come to the court before the Hundredor; there let him break upon his head four willow wands, and throw the pieces into the Mall, and let him declare that he renounces the oath, the right to in. herit, and every family relationship.

"And is, thereafter, any of his relatives dies, or is killed, let him touch nothing either of the heritage or the wehrgeld of the dead man.

"And, when he himself dies, or is killed, let his wehrgeld and his right of inheritance belong, not to his relations, but to the treasury, or to him to whom the treasury shall assign it."

The great difference between the Teutonic and Roman laws of succession is evident; but there is a second difference which separates the two systems still more widely from each other. Yet it is from their junction that our modern codes have sprung.

The Roman heritage comprehends the whole of the property and of the rights of the deceased; there is no distinction between the different subjects of the succession, whether by reason of their nature or their origin. The heritage is a solid mass which does not admit of disintegration, and which only belongs to a single heir, the absolute representative of him from whom he inherits. The Teutonic law of inheritance has not this character; not that we do not meet among the barbarians with heirs who succeed to all the rights, as well as to all the obligations, of the deceased ; but this aggregation round a single individual is merely accidental. The Teutons did not recognise that unity of patrimony—that absolute continuation of the person-which characterise the Roman law of inheritance. The properties of which the Teuton's fortune consists preserve their several characters, and are not confounded with each other. At the death of the possessor, these distinctions appear in all their force. The succession to the allodium, regulated by the customs of the tribe, is not the same as the succession to the fief, or to the tenancy at will, which are settled exclusively by the terms of the grant; the succession to the family property is not the same as that to the acquired property ; the heir of the chattels is not always the heir of the real estate, often even there are several heirs for the chattels, and there is sometimes a peculiar devolution for the wehrgeld; thus, in the same heritage, there are different sorts of property, different orders of succession, and different heirs.

This motley diversity we must never lose sight of, if we desire to understand customs which introduced a new spirit into the law of inheritance-a spirit which has acted powerfully on the development of feudal legislation, and the traces of which are still visible in our civil laws, like those deeply-seated roots which the disturbances of the soil have not entirely removed. § 5.-ON THE SUCCESSION OF DAUGHTERS IN THE DIRECT LINE.

I. The dezvolution of the Allodium.---The law of the Thuringians says

“Let the son, and not the daughter, take the paternal estate. If the deceased has no son, let the daughter have the money and the slaves, but let the land devolve upon the nearest male relative on the father's side.

“If the deceased leaves neither sons nor daughters, let the sister take the money and the slaves, but let the land be given to the paternal agnate.

“If the deceased leaves neither sons, nor daughters, nor sisters, but only a mother, let the mother take the share which the daughter would have taken, that is to say, the money and the slaves.

“If he leaves neither sons, nor daughters, nor sister, nor mother, let the nearest paternal relative succeed to the whole, let such take the money, the slaves, and the land.

* It is to the heir of the allodium that the coat-of-mail, the right of vengeance, and the wehrgell belong.

"Let the mother, when dying, leave to her son the land, the money, and the slaves, and let the necklaces and chains, the jewels and earrings, the dresses, and all that ministered to the personal use of the mother, be given to the daughter.

"If there is neither son nor daughter, but a sister, give to the sister the money and the slaves, and to the paternal agnate the land.

"The paternal agnates succeed to the fifth generation ; after this degree the daughter takes all the heritage, whether the father's or the mother's; then only the heritage passes from the lance to the knitting-needle."

This ordinance is the faithful reflex of the ancient Teutonic spirit. The Salic and Ripuarian laws, which both belong to the same family of Teutonic customs as the Thuringian law, are couched in equally rigorous terms; the exclusion of the daughters seems even more severe; it would appear that they are indefinitely excluded by the male relatives to the most distant degree. The Salic law has it thus

“ Of Salic land let no share devolve on a woman, but let the whole landed estate devolve on the male sex.”

The Ripuarian law declares

“But while the male sex is extant, let not a woman succeed to the ancestral estate.”

The other customs, such as the laws of the Alemanni, the Bavarians, the Saxons, and the Burgundians, prefer the son to the daughter in the succession to the allodium, and in this particular they resemble the Salic customs, but they prefer the daughter to the collateral male relatives. In this mitigation of the ancient rigour, one cannot fail to detect the influence of a more advanced civilisation. It was the early cropping up of the Roman spirit.

This predominance of the Roman spirit is visible in a law of Luitprand's which corrects the sternness of the ancient Lombard code, and openly prefers the daughter to the male collaterals. I also discover this preference in an ordinance of Chilperic's, which dates back to the early days of the Frankish conquest. This ordinance, which has been lately published by M. Pertz, is a new proof of the rapidity with which, in France, the Roman element penetrated and transformed the Teutonic element.

“ In the same spirit we ordain that if any one has with him either sons or daughters who survive him, let the sons have the land so long as they shall live, just as the Salic law prescribes. And if the sons shall have died suddenly, let the daughter receive the same lands which the sons would have had, had they been alive.

“And if a brother dying suddenly shall not have left a brother him surviving, then let his sister come into possession of the land.”

« PreviousContinue »