CHAP. VIII.

_Of the_ Salick Law, _and what Right_ Women _had in the

King's their Father's Inheritance_.

Because we have undertaken to give an Account of the _Law_ and _Right_

of _Regal Inheritance_, we must not omit making Mention of the _Salick

Law_; which is both daily discours'd of by our Countrymen, and in the

Memory of our Forefathers serv'd to appease a great and dangerous

Contention, which arose touching the Succession to the Crown. For when

(_Anno_ 1328.) _Charles the Fair_, Son of _Philip the Fair_, died,

leaving his Wife with Child of a Daughter, (which some Months after was

born) _Edward King of England_ (Son of _Isabella_, the Daughter of

_Philip the fair_, and Sister to _Charles_ lately dead) claimed the

Inheritance of his Grandfather's Kingdom as his Right. But _Philip of

Valois_, Cousin germain by the Father's Side to the deceased King,

standing up, alledged that there was an ancient Regal Law, called the

_Salick Law_, by which _all Women_ were excluded from the Inheritance of

the Crown. Now this Law both _Gaguinus_ and other Writers of like Stamp

tell us, was written by _Pharamond_; and he calls it a most famous Law,

even to his Time. For in his Life of _Philip of Valois_; "The _Salick_

Law (says he) was a Bar to _Edward_'s Title; which Law being first given

by _Pharamond_ to the _Franks_, has been religiously observed, even to

those Days. By that Law, only the Heirs Male of our Kings are capable of

governing the Kingdom, and no Females can be admitted to that Dignity.

The Words of that Law are these: _Nulla hereditatis portio de terrâ

Salicâ ad mulierem venito; Let no Part of the Inheritance of_ Salick

_Land come to a Woman_. Now (says _Gaguinus_) the _French_ Lawyers call

_Salick_ Land, such as belongs only to the King, and is different from

the _Alodial_ which concerns the Subjects; to whom, by that Law, is

granted a free Dominion of any thing, not excluding the Princely

Authority." And to the same Purpose, not only almost all the

_Francogallican Historians_, but even all the _Lawyers_ and

_Pettifoggers_ have wrote to this Day, as _Paponius_ testifies,

_Arrest._ lib. 4. cap. 1. So that now the mistake has prevailed so far,

as to have obtain'd the Force of a Law. To explain this, it must be

remembred (which we formerly gave an Account of) that the _Franks_ had

two Seats of their Empire, and two Kingdoms; One in _France_, which

remains to this Day; The other beyond the _Rhine_, near the River

_Sala_; from whence they were called _Salii_, and _Salici Franci_

(joyning the two Names together) but for the most part briefly _Salici_;

the Kingdom of these last, and even their very Name is in a Manner

extinct. _Ammianus Marcellinus_ makes mention in his History (as we told

you before) of these _Salii_, and shews, that they are called the

_Eastern Franks_, as the others were called the _Western_. Now as there

were two Kingdoms of the _Franks_, so they had different Laws: those

that belonged to the _Salii_, were called _Salick_; those that belonged

to the _Francogalli_, were called _French. Eguinarthus_ in his Life of

_Charles_ the Great says thus:--"After he had assumed the Imperial

Title, finding that his Peoples Laws were in many Things deficient,

(_for the_ Franks _have two Laws very different from each other in many

Cases_,) he thought of adding such as were wanting."--The Author of the

Preface to the _Salick_ Law has this Passage.--"The renowned Nation of

the _Franks_, before it was converted to the Catholick Faith, enacted

the _Salick_ Law by the Great Men of the Nation, who at that Time were

their Governors; and from among a great many, four Persons were chosen;

_Wisogast, Arbogast, Salogast_, and _Windogast_; who, during three

Conventions [_tres mallos_] carefully perusing all Causes from their

Original, gave their Judgment and Decree of every one of them in this

Manner, &c.--" _Sigebertus_ in Chron. anni 422. & _Otto Frising_, lib.

4. cap. penult. make use of almost the same Words. "From that time (say

they) the Laws recommended to them by _Wisigastaldus_ and _Salogastus_,

began to be in Force. By this _Salogastus_, they tell us, that Law was

invented, which from his Name is to this Day called the _Salick_ Law;

and the most noble of the _Franks_, called _Salici_, observe it at this

time."--Thus say the old Chronographers. By which we may refute the

Error of such as derive the _Salick_ Law, _à Sale_, that is, _Prudence_;

or what is called corruptly _Lex Salica_, instead of _Gallica_; than

which nothing can be more absurd. But much greater Errors spring from

the same Fountain: First, That People are so far imposed upon by those

Authors, as to believe the _Salick_ Law had reference to the _Publick

Right_ of the _Commonwealth_ and the _Government_, also to the

_Hereditary Succession_ of the Kingdom. Now the very Records or Tables

of this _Salick_ Law were not many Years ago found and brought to Light;

from whose Inscription it appears, that they were first written and

publish'd about _Pharamond'_s time: Besides, that all the Heads and

Articles, both of the _Salick_ and _French_ Laws, were Constitutions

relating only to _private Right_ between Man and Man, and meddled not

with the _Publick_ Right of the Kingdom or Commonwealth: among the rest,

one Chapter, _tit. 62._ has this in it.--"Of the _Salick_ Land, no Part

or Portion of Inheritance passes to a Female; but this falls to the Male

Off-spring; that is, the Sons shall succeed to the Inheritance: But

where a Dispute shall arise (after a long Course of Time) among the

Grandsons and great Grandsons, _de alode terræ_; [Footnote: _Allodium_ is

the contrary to _Feudum, Gothick_ words, for which 'tis difficult to

find proper _English_.] let it be divided, _Non per stirpes sed per

capita."_ The like Law, _Extat apud_ Ripuarios, _tit._ 58. _Item apud_

Anglos, _tit._ 7. Where they are so far from enacting any thing relating

to the Inheritances of Kingdoms, that they do not so much as affect

_Feudal_ Successions, but only belong to _Allodial_; altho' a Portion

was assigned to Women out of those _Allodial_ Lands. Which Way soever

this Matter may be, 'tis manifest in the first Place, that altho' no

Article, either of the _Frank_ or _Salick_ Law were extant, which debars

Women from the Inheritance of the Crown; yet the Customs and

Institutions of a Nation, preserv'd inviolate by universal Consent,

during so many Ages, obtain the Force of a written Law: For tho'

_Childeric_, the Third King, left two Daughters behind him at his Death,

the Kingdom was given to his Brother _Lotharius_, and his Daughters

excluded. Again, after the Death of _Cherebert_ the 5th King, who left

three Daughters; the Succession devolv'd upon his Brother _Sigebert_.

Also when _Gontrannus_ King of _Burgundy_ and _Orleans_ died, the

Kingdom was conferr'd on his Brother _Sigebert_, not on his Daughter

_Clotilda_. Lastly, _Philip_ of _Valois's_ Advocates might with greater

Caution, as well as Efficacy, have argued for him out of the _Feudal_

Law, by which all Inheritances of _Fiefs_ descend to the Male Issue

only, and not to the Female, who are not admitted to them. And when

there happens a Want of Heirs Males in that Line or Branch wherein the

Fief is lodged, then the _Feudum_ or _Fief_ returns back to the other

Stock or Branch: which was the very Case at that Time. But such Fiefs as

thro' a Depravation of the Law, are convey'd down to Women, cannot

properly be called _Feuda_, but _Feudastra_, as in other of our Writings

we have made it appear.

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Franco-Gallia · 第 31 / 45 题