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will, but as an express obligation; that is to say, if they have one, or two, or so many as four children, they owe ihe third part of all their property, but if the children are more than four, the parents are bound to leave them one moiety. But the sons owe to their parents only a fourth part. Whoever has only the falcidia must receive it without burden, charge, or servitude."

In the Gothic laws the Roman testament crops up in all its power ; the prerogative of the testator is absolute. But this absolutism was promptly repressed as being at variance with Teutonic ideas. King Chindaswind limited the father's privilege, and by striking a just proportion between the exigencies of the name of son and the right of bequest, he ordained that the testator should be absolute master of his fortune if he had no children, but, having them, he might only dispose of the third of his estate for the benefit of a single son, of a fifth part for the benefit of a stranger.

“Eut lest that natural affection which ought to be exercised towards sons or grandsons should be wanting, for this reason let that law be repealed under which a father, or a mother, a grandfather or a grandmother, had the power to bestow their property on a stranger if they chose, and also that a woman might dispose of her marriage porion as she pleased ; rather let this moderate rule be observed by all, that neither the power of deciding concerning the allotment of their own property be entirely taken away from the parents or grandparents, nor let an indiscreet caprice altogether cut off sons or grandsons from the ancestral or paternal heritage."

A nineteenth century legislator could add nothing to the wisdom of these injunctions.

Much more favourable to the rights of blood, the Barbarian laws do not even permit the father to consume during his life, without an admitted necessity, a patrimony which they regard as the common property of the family. No conveyance is of any value except with the consent of the children who are primarily interested in the preservation of the heritage.

In ancient deeds we meet at every instant with cases in which the children figure as necessary parties to the same, when the parent conveys the inherited estate, and I do not remark that the daughters are less privileged in this respect than the sons. The consent of the daughters is especially frequent in the deeds of the tenth and eleventh centuries ;t a fact which pre-supposes a singular weakening of the ancient severity, and a sensible amelioration in the condition of women, an amelioration which disappeared during feudalism.


The Bavarian law established a real légitime in the sense we understand it now-adays, by permitting the father to dispose freely of his estate, when he had set aside the children's share.

† The family right was so powerful in the north of Europe, that it was not uncommon, for greater security of title, to make the daughters, sisters, and mother of the vendor, join in the conveyance.

I give, as a specimen, a deed of Otho III., in the year 996, which shows the daughter's rights in full vigour. Two centuries later it would be difficult, especially in France, to light upon so formal a deed.

“ In the time of our ancestor of pious memory, Lord Otho, the august Emperor, Count Wichmann, for the good of his soul and those of his relations, erected in a certain place called Attenis, a monastery and congregation of holy women in the honour of our Lord Jesus Christ and the Holy Ghost ; and gratuitously conveyed to the said monastery a great part of his absolute property, as well as of the fief which our beloved ancestor first gave to him to hold in see, and afterwards gave it to him absolutely, in consideration of his active service ; and Count Wichmann constituted his own daughter, named Lutgarda, as abbess over the other nuns. But in course of time, when the said Count had paid the debt of nature, another daughter of his, named Adela, demanded a certain part of the property already conveyed away, and said that her father, according to the Saxon law, had no power to make a conveyance without her consent and assent, and accordingly convicted of illegality the whole donation of her father."

This privilege of blood which so hampered the liberty of selling, was gradually done away with in the twelfth century ; it is still found in the customary laws of Germany, but in the majority of the French Customs this degenerated right was changed into a right of redemption for the heir (retrait lignager) as against the purchaser when both offer an equal sum for the landed estate. At the same time, and under the influence of Roman theories, the right to the légitime was modified ; the vested

1 right of the children dwindled down to a mere expectancy. But enfeebled as this claim was, it still remained very different from the Roman legitime; and this sharp distinction is still apparent in our French jurisprudence, which oscillates between the Roman principle which was preserved in the South of France, and the Germanic principle which was religiously protected in the North of France.


COLLATERAL LINE. What I said in reference to the law of the Thuringians, dispenses me from dwelling on collateral succession. The reasons which excluded the daughters from direct succession to the allodium, must apply with greater force to the collaterals, as the distance of relationship rendered the position of heiress less sacred. As to the personal estate, the law of the Thuringians and that of the Burgundians, as we have just seen, placed the sister in the same position as the daughter and mother.

I will wind up with a reflection which will give us the key to the order of succession adopted by the Teutonic customs and Feudal laws. We have seen that, in the ancient Roman codes, it was the power of the head of the family which lay at the basis of the right of succession ; in the Justinian code, it was blood and proximity which constituted the right; in the German customs, it was parentage. The family dwelling must never leave the family and the line to which it belongs; the succession is lincal, or, to use another expression, genealogical.

In this order of succession those who, as collaterals, are first entitled, are not always, as in the Justinian jurisprudence, those who are most nearly united to the deceased by proximity of blood, but those who are nearest to the common root, and this line being thus established, the nearest relation to the common ancestor is entitled, without admitting the principle of substitution. Thus, to take an example, if the heritage is an ancestral one on the father's side, and there are no direct heirs of the deceased, the descendants of the grandfather take, in default of these, the descendants of the great-grandfather, great-great-grandfather, &c., always going upwards to the first ancestor. In this system the nephew only occupies the second rank; whereas, his uncle, the brother of the deceased, occupies the first, for the nephew is two degrees from the common ancestor, his uncle only one; but the nephew inherits before the uncle of the deceased, for he is in the line of the father, whereas the uncle is the line of the grandfather.

This explanation affords a new reason for the preference of the males which is found in the collateral, as well as in the direct line ; namely, that this genealogical succession, being always referable to a direct succession, it was natural for the brother to take the place of the son, and the sister that of the daughter. Therefore we must not be surprised to see sometimes in the letters patent, the sons of the brother preferred to the sister, by an evident analogy to those customs which prefer the son's children to the daughter; it is a consequence of the same principle. It is direct succession which alone exists under this deceptive appellation of collateral succession. When once the principle of substitution is conceded, nothing is more natural than to prefer the nephews to the aunt, as the grandsons are preferred to the daughter ; but also, by a natural logic, the moment the exclusion of women ceases, the sister is recalled to succession along with the daughter; both profit by the same liberality, as they suffered by the same prejudice of the laws.

§ 10.—THE PECULIARITY OF THE SALIC LAW. The Salic law offers an enigma which has not yet been explained ; it excluded women from the succession to the allodium, while there were any males, and this general disposition is applicable to the collateral as well as to the direct line; then, by a curious turn, it laid ciown, for the rest of the heritage, an order of succession in which women were singularly favoured. Thus it calls to the succession, when the deceased leaves no children :

1. The father and the mother on an equal footing:

2. The brothers and sisters, share and share alike; then the mother's sister in preference to the father's sister; no mention

being made of the father's or mother's brothers. This preference of the mother's sister gave way to the preference of the father's sister in the Amended Salic Law, that is to say in the text adopted by Charlemagne.

The savants of the last century availed themselves of the amended law to argue an error in the texts which put the mother's sister before the father's sister, but this correction is purely arbitrary, and has against it the best manuscripts, namely, those of Wolfenbüttel, Paris, Munich, and Fulda. A legitimate criticism cannot admit a correction which has opposed to it such imposing authorities.

I will add that the Salic law is not the only barbarian custom which has preserved traces of this preference for the female line in the case we have indicated. The Ripuarian law, for instance, says, –

“If there are neither brothers nor sisters let the mother's and father's sister next succeed.”

And the law of the Burgundians says:

“If the deceased has left neither son nor daughter let the heritage revert to his sisters."

Again, if we admit the proposed correction, the difficulty is removed a step further, but is not solved. Why does the father's sister figure in the line of succession, without the father's brother being admitted at the same time ?

The only solution which has any show of reason is that, as the law reserved to the males the exclusive right to succeed to the real estate, or at least to the inherited real estate, it was but justice to reserve exclusively to the women the right to succeed to the personal estate. But why was the mother's sister preferred to the father's sister? I really cannot account for it. May it not have been because the mother's sister is the nearest relative on the female side, and that the whole personal estate was regarded as a gerade ?

When we come to speak of the second marriage, we shall again light upon a peculiar right of succession, in which the female line has the prior right. In the matter of the rights of inheritance, and especially the female rights of inheritance, the Salic law is full of inextricable difficulties, and it is wonderful that so many savans should have agitated this question and yet have thrown so little light upon it.

(To be continued)




PART II. Oh, what a doom was mine-to pluck the bud, And leave the stalk all flowerless to pine ! To plant a thorn, where roses should have bloomed! A sting, where joy its seedling watched with care ! To pour a bitter drop at the spring-head To poison all a life-to murder health ! To lay the scorching finger of disease Upon the petals of the sweet blush rose, And cast them reckless to the empty air ! This was the curse—the lightning blast of heaven, That scared and blighted all my life in his. The child lived on—but what a change was there ! Nature's fair mould all broken and undone. The cruel wasting of the once round limbs ; The sickly pallor of the fading cheeks; The languid accents of the wailing voice, Were all my work—the large grey eyes alone Were lovely still, but sadly eloquent With the mute pleading of the stamp of pain. My life was now devoted to the child; Before high heaven, I had no other wish, No other green spot in my blasted life, Than in some measure to repair the ill My guilty pang had brought upon the boy. And the child loved me-loved me for myself, The only thing on earth that loved me so, The only thing on earth that so I loved. The beauty I had prized was all for him ; My beauty's price, the glittering toys I wore, Were all for him-I wore them but for him. Because he liked to weave his poor thin hands Amid the masses of my showering hair, I let it hang dishevelled, all for himBecause he loved to hear me sing, I sang, My bleeding heart mcanwhile against the thorn,

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