CHAP. XX.

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 desart.

This 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 association 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 spilt their blood.

CHAP. XXI.

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 Britanny, in the duchy of Rohan, where it obtains with regard to ignoble tenures. This is doubtless a pastoral law conveyed thi

ther by some of the people of Britain, or established by some German nation. By Cæsar and Tacitus we are informed, that the latter cultivated but little land.

CHAP. XXII.

Of a Civil Law of the German Nations.

I SHALL here explain how that particular passage of the Salic law, which is commonly distinguished by the term The Salic Law, relates to the institutions of a people who do not cultivate the earth, or at least who cultivate it but very little.

The Salic law ordains,* that when a man has left children behind him, the males shall succeed to the Salic land in prejudice 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. shall proceed farther, and examine into the nature of the house, and of the land belonging to the house, among the Germans.

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They dwell not in towns," says Tacitus, "nor can they bear to have their habitations contiguous to those of others; every one leaves a space or small piece of ground about his house, which is inclosed."+ 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.

We learn from Tacitus and Cæsar, that the lands cultivated by the Germans, were given them only for the space 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.§ It was this particular pa

* Tit. 62.

+ Nullas Germanorum populis urbes habitari satis notum est, ne pati quidem inter se junctas sedes; colunt discreti, ut nemus placuit. Vicos locant, non in nostrum morem connexis & cohærentibus ædificiis: suam quisque domum spatio circumdat. De Moribus Germanorum.

The law of the Alemans, c. 10, and the law of the Bavarians, tit. 10 § 1. and 2.

§ This inclosure is called Cortis, in the charters.

trimony which belonged to the males. And indeed, how could it belong to the daughters? they were to pass 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, &c. The habitation, and the small portion of land adjoining to 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.*

Amongst these formularies I find one of a singular nature.+ 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 could 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 sex 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 œconomical law, which gave 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 title 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 4. If nor sister, the sister of his mother shall succeed him. his mother has no sister, the sister of his father shall succeed him. 5. If his father has no sister, the nearest relation by the male side shall succeed. 6. Not any part of the Salic

See Marculfus, 1. 2. form. 10. & 12. Append. to Marculf, form. 49, and the ancient formularies of Sirmondus, form. 22.

+ Form. 55, in Lindembroch's collection.

land shall pass to the females; but it shall belong to the males; that is, the male children shall succeed their father."*

It is plain that the first five articles relate to the inheritance of a man who dies without issue; and the sixth, to the suc cession of him who has children.

When a man dies without children, the law ordains that neither of the two sexes shall have the preference to the other, except in certain cases. In the two first 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 extravagancies: "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." From 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. 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,§ she fell under the guardianship of her husband's relations; the law preferred to this guardianship the relations by the females before those by the males. Indeed, a woman who entered into a family, joining herself with those of her own sex, became more united to her relations by the female than by the male. Moreover, when a man killed another, and had not wherewithal to pay the pe cuniary penalty, the law permitted him to deliver up his substance, and his relations were to supply the deficience. 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

De terra verò Salich in mulierem nulla portio hereditatis transit, sed hoc virilis serus acquirit, hoc est filii in ipsâ hereditate succedunt. Tit. 62. § 6.

+ Sororum filiis idem apud avunculum quam apud patrem honor. Quidam sanctiorem arctioremque hunc nexum sanguinis arbitrantur, & in accipiendis obsidibus magis exigunt, tanquam ii & animum firmiùs & domum latiùs teneant. De Morib. Germanorum.

See, in Gregory of Tours, lib.8. c. 18. and 20. and lib. 9, c. 16. and 20. the rage of Gontram at Leovigild's ill treatment of Ingunda his niece, which Childebert her brother took up arms to revenge.

§ Salic law, tit. 47.

Ibid. tit. 61. § 1.

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the degree of kindred which imposes the burthens, ought also to confer the advantages.

The Salic law enjoins, that after the father's sister, the succession should be held by the nearest relation male; but if this relation 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 title of Allodial Lands, where it closely adheres to the Salic law on the same subject.*

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. This appears from the letter of the Salic law; which after having said, that the women shall possess none of the Salie 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 title on allodial lands, very conformable to that of the Salic law.+

3. The laws of these barbarous nations, who all sprung 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 inheritance.+

4. We have two ancient formularies § that state the case, in which according to the Salic law the daughters were excluded by the males; that is, when they stood in competition with their brother.

5. Another formulary || 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

* Et deinceps usque ad quintum genuculum qui proximus fuerit in hereditatem succedat. Tit. 56. § 3.

+ 56.

Tit. 7. §1. Pater aut mater defuncti, filio non filiæ hereditatem relinquant; § 4. qui defunctus, non filios, sed filias reliquerit, ad eas omnis hereditas pertineat.

§ In Marculfus, 1. 2. form. 12. and in the Appendix to Marculfus,

form. 49.

|| Lindembroch's collection, form, 55.