PRIMITIVE INSTITUTIONS OF THE FRANKS. 103

LECTURE XII.

Ancient institutions of the Franks.-They are more difficult of study than those of the Anglo-Saxons -Three kinds of landed property; allodial, beneficiary, and tributary lands.—Origin of allodial lands.-Meaning of the word allodium.-Salic land amongst the Franks.-Essential characteristics of the allods.

THE primitive institutions of the Franks are much more difficult of study than those of the Anglo-Saxons.

I. In the Frankish monarchy, the old Gallo-Roman people still subsisted; they in part retained their laws and customs; their language even predominated; Gaul was more civilised, more organised, more Romanised than Great Britain, in which nearly all the original inhabitants of the country were either destroyed or dispersed.

II. Gaul was divided among various barbarian peoples, each of whom had its own laws, its own kingdom, its own history; the Franks, the Visigoths, the Burgundians; and the continual alternations of the Frankish monarchy between dislocation and re-union, long destroyed all unity in its history.

III. The conquerors were dispersed over a much larger extent of territory; and central institutions were weaker, more diverse, and more complicated.

IV. Of the two systems of social and political order, contained in the cradle of modern nations-I mean the feudal system and the representative system-the latter has long prevailed in England, while the former long maintained its sway in France. The ancient national institutions of the Franks were absorbed into the feudal system, in whose train came absolute power. Those of the Saxons, on the other hand, were more or less maintained and perpetuated, to end at length in the representative system, which rendered them clear by giving them due development.

Perhaps, also, the difficulty of the study of the ancient Frankish institutions arises in some measure from the fact that we possess more documents respecting the Franks than

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VIEWS OF HULLMANN.

respecting the Saxons. Because we are acquainted with more facts, we have greater trouble in harmonizing them. We believe we are better informed because we know less.

Such being the case, I wish to state with precision the object of my researches, so as not to lose time in useless digressions. I do not propose that we should study together either the state of Frankish society in all its departments, or the history of all its vicissitudes. I am desirous to investigate and explain to you, first, what constituted in France, from the fifth to the tenth century, the political part of the nation, possessing political rights and liberties; and secondly, by what institutions these rights were exercised, and these liberties guaranteed. We shall frequently be obliged to make excursions beyond these limits in search of the facts necessary to the solution of the questions contained therein; but we shall not dwell long upon such extraneous matter.

In the pursuit of this study, we shall find the works of German authors of incontestable utility. A principal cause of the errors of the leading French writers who have treated of the subject, is that they have attempted to derive all our institutions from Germany, from the condition of the Franks before the invasion, and that, at the same time, they have been unacquainted with the language, the history, and the learned researches of the purely German peoples, that is, of the nations which have most thoroughly retained the primitive elements of Frankish society, and which formed a considerable portion of the Frankish monarchy.

Dr. Hullmann, a professor at the University of Bonn, has written a book on the origin of the various social states or conditions, the object of which is to prove that all modern social order, political as well as civil, derives its origin from the circumstance, that the peoples of modern times have been agriculturists, devoted to the possession and fixed cultivation of land. This view, although incomplete, is of much importance. It is certain that, in the history of Europe, ever since the fall of the Roman Empire, the condition of persons has been closely connected with that of landed property, and that the one throws light upon the other. Though all history would not prove that this has been the case from the beginning, yet the long-continued predominance of the feudal system, which consists precisely in the intimate connection

CONDITION OF LANDS.

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and amalgamation of the relations of lands with those of persons, would alone be sufficient to demonstrate it unquestionably.

At the outset, the condition of persons gave rise to that of lands; according as a man was more or less free, more or less powerful, the land which he possessed or cultivated assumed a corresponding character. The condition of lands afterwards became the symbol of the condition of persons; according as a man possessed or cultivated such and such a domain, he was more or less free and more or less important in the State. Originally, the man gave its character to the estate; in the sequel, the estate gave his character to the man: and as symbols quickly become causes, the condition of persons was at length not only indicated, but determined by, and consequent upon, the condition of lands. Social conditions became in some degree incorporated with the soil: and a man found himself possessed of a certain rank and of a certain degree of liberty and social importance, corresponding to the character of the land which he occupied. In studying modern history, we must not for a moment lose sight of these vicissitudes in the condition of lands, and of the varied influence they exerted upon the condition of persons.

There is some advantage in first studying the condition of lands, in so far as it was a symbol of the condition of persons, because the former is somewhat more determinate than the latter. It is also less complicated; the condition of persons frequently varied upon lands of the same condition; and the same persons have possessed lands of different conditions. Our information, respecting the condition of lands, is also more than exact.

In studying the condition of landed property and its vicissitudes, I do not propose to investigate its civil condition, or to consider property in all its civil relations, such as suc cessions, bequests, and alienations. I intend to consider it only in its relation to the condition of persons, and as a symbol or cause of the various conditions of society. In the period which we are about to study, from the fifth to the tenth century, we have this advantage: that it contains a complete system, both as regards landed property, and also with respect to the condition of persons and the political institutions of the nation.

At this period, we meet with three kinds of landed property: 1st. Allodial lands; 2nd. Beneficiary lands; and 3rd. Tributary lands.

1st. Of allodial lands or Allods.-These were lands possessed in absolute right, which the proprietor held from no one, on account of which he owed nothing to any superior, and of which he had full liberty to dispose. The lands taken or received as booty by the Franks, at the time of the conquest of Gaul, or in their subsequent conquests, were originally allodial. At a later period it was said that a man held an allodium, only from God and his sword. Hugh Capet said that he held the crown of France in this manner, because he had received it from no one. Such tenures were mementos of conquest.

The word alode itself indicates that the first allods were lands, which fell to the conquerors either by lot or division; loos, lot; allotted, allotment; whence also came the French word, loterie. Among the Burgundians, Visigoths, Lombards, and others, we find positive traces of this division of the lands allotted to the conquerors. They took possession of two-thirds of the land, that is, not of the whole extent of the country, but of the land in any locality, where a barbarian of any importance took up his residence. The lands which thus fell to the barbarians, were called Sortes Burgundionum, Gothorum, and so on. We do not find among the Franks positive traces of such a division of the land; but we know, nevertheless, that they divided their booty by lot.

The word alode, then, was probably applied at first only to the lands taken by the victors in virtue of their conquests. Another proof of this is that allodial property, properly so called, was long distinguished from the lands held also in absolute right, and entailing no acknowledgment of a superior, but which had been acquired by purchase or in any other way. A distinction was also made among allodial lands, of salic land, which could be inherited only by males. This was probably the original allod, the land acquired at the time of the conquest, and which thereupon became the pri mitive and principal establishment of the head of the family. Terra salica is the terra aviatica of the Ripuarian Franks, the terra sortis titulo adquisita of the Burgundians, the hareditas of the Saxons, and the terra paterna of the formulas of

Marculf. Various explanations have been given of the term salic land. Montesquieu thinks that it was the land belonging to the house, from the word, sal, hall. This explanation is supported by Hullmann. It would thus be the in-land of the Anglo-Saxons. It is probable that originally the terra salica was in fact the land connected with the house, the residence of the chieftain. The two explanations would thus coincide; but the former is more complete and historical than the latter.

The name of allod was extended by degrees to all lands possessed in absolute right, and held from no superior, whether they were the original allods or not. The words proprium, possessio, prædium, hæreditas, were then employed as synonymes of allodium. It was probably at this period also that the rigorous interdict which excluded females from succession to salic land, fell into desuetude. It would have been too harsh to exclude them from succession to all allodial property. There were some doubts entertained on this point as early as the time when the salic law was drawn up; and Marculf has transmitted to us a formula which proves that, although it was the common law to deprive females of all succession to primitive allods, a father might, nevertheless, by his will, give his daughter an equal share with his sons in the division of all his property, of whatever

nature.

The essential and primitive characteristic of the allodium, consisted in the absoluteness of the property; the right to give it away, to alienate it, to bequeath it by inheritance or will, &c. Its second characteristic was that it depended upon no superior, and involved no service or tribute of any kind to any individual. But although allodial lands were exempt from all private charges towards individuals, does it follow that they were also exempt from all public charges as regarded the state, or the king as head of the State? This question has been differently answered by learned men.

At the period to which we allude, there were no public charges properly so called, no obligations imposed and fulfilled as regarded the State, or its head. All was limited to personal relations between individuals; and from the relations of man with man arose the mutual relations of landed property, which were not carried further than those