Front Page Titles (by Subject) CHAPTER V.: ROYAL SUCCESSION AND THE SALIC LAW. - Dissertations on Early Law and Custom
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CHAPTER V.: ROYAL SUCCESSION AND THE SALIC LAW. - Sir Henry Sumner Maine, Dissertations on Early Law and Custom 
Dissertations on Early Law and Custom, chiefly selected from Lectures delivered at Oxford (London: John Murray, 1883).
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ROYAL SUCCESSION AND THE SALIC LAW.
In the legal history of those Western societies which have passed through feudalism, Succession to Property and Succession to Thrones are intimately connected together. When Bruce and Baliol, with ten other competitors, conduct a litigation before Edward I. of England respecting the right to the Scottish Crown, the arguments are not distinguishable in principle from arguments on the inheritance of an ordinary fief, and in point of fact this famous dispute did settle some points in the law of succession to land all over the West. But the law systems of the East, which contain an elaborate law of succession to private property, contain little or nothing about succession to thrones. One reigning Mahommedan house, that of the Ottoman Sultans, has continued to our day a system of royal succession of the highest antiquity—that under which the eldest male relative is preferred in the succession to the son; but there is no clear connection between this rule and any part of the abundant private law of inheritance declared by the Mahommedan doctors. At most we may trace a resemblance in the places respectively assigned to the son and to the paternal uncle in the Mahommedan scheme. Indeed, of all systems of succession to property, the Mahommedan system is the most difficult to adjust to royal successions. It is a system of minute fractional division between a number of relatives whose grouping1 nobody seems to me to have as yet successfully explained. I agree with Sir George Campbell, that it must have grown up among a race whose property was easily divided into units, and possibly consisted of flocks and herds; and, again, I think that Mr. Almaric Rumsey (‘Mohammedan Law of Inheritance’) has conclusively shown that its greatest apparent difficulties arise from the fact that, whatever was the algebraical knowledge of later Mahommedans, the earliest expositors of this law were ignorant of some simple principles in the manipulation of fractions. On the whole, we must at present be satisfied with the orthodox Mahommedan explanation of the rules, which is, that they rest upon separate utterances of authorities supposed to speak with Divine authority—of the Prophet, his companions, and those who talked with them; and that they are not therefore necessarily reducible to systematic order.
The Hindu law of succession has more authentic claims than that of the Mahommedans to a religious origin. Some of its principles can be applied without much difficulty to a royal succession; but nevertheless it is essentially a law of succession to private property. It is somewhat remarkable that we learn little from the ancient Hindu lawyers of the rules under which a King should succeed. For when they have once recognised the King as an important auxiliary of the Brahman, they are not chary of advice to him or of opinions on his duties. First of all, he is to execute justice and maintain truth. But much more than this is inculcated on him. Even so old an authority as Apastamba (ii. x. 25. 1) tells him how to build a city and a palace. ‘The palace shall stand in the heart of the town. In front of it there shall be a hall. That is called the Hall of Invitation. At a little distance from the town to the south he shall cause to be built an assembly house, with doors on the south and on the north sides, so that one can see what passes inside and outside. In all these three places fires shall burn constantly, and oblations shall be offered in them daily, or at the daily sacrifice of a householder. In this hall he shall put up his guests, at least those who are learned in the Vedas. Rooms, a couch, meat and drink should be given to them according to their good qualities. But let not the king live better than his spiritual directors or his ministers.’ Elsewhere he is taught how to amuse himself with dice, ‘in even numbers, made of vibhitaka wood;’ how to appoint administrative deputies; how to reward successful generals. Gautama compendiously lays down that the king is ‘master of all with the exception of Brahmans;’ and in the later treatises, Vishnu and Manu, there are very long discussions on regal duties, the teacher even giving an account of the art of strategy and of the methods of taxation. But there is nothing about the way in which princes succeed to thrones, unless a trace of a rule be sought in a direction to a victorious king, ‘not to extirpate the royal race’ when he conquers a country, but to invest a prince of this race with the royal dignities. The modern Hindu applies his religious law to royal succession only by analogy, and he generally applies the oldest part of that law. The family customs which have grown up in Indian royal houses reflect the ancient rules, barely mentioned by our oldest authorities, on the subject of primogeniture and indivisible patrimony, and it is to be observed that they show a marked preference for Adoption over Collateral Succession.
The truth is, that for Oriental systems of succession to Thrones, we have to go to usages, older perhaps than the great religious movements which have swept from time to time over the East, and having, at all events, a history independent of the institutions to which these movements give birth. The real or pretended doubts, the bitter disputes, and the sanguinary wars which the application of these customs occasioned were once among the chief scourges of mankind in the countries in which they prevailed, but the area of such troubles has been much contracted by the British Indian Empire. Yet the Empire itself was only the other day mixed up with one controversy of the kind which might be taken as a typical example of its class. One can never be very sure how long any Indian events survive in English memory, and yet some of us should recollect the perplexity caused by the names and claims of the various Chiefs or Princes who appeared during three or four years in the newspaper correspondence as pretenders to sovereign authority in Afghanistan. We heard of the unhappy Shere Ali Khan who, after the first British success, retired from Cabul, his capital, only to die—of Yakub Khan, now a State-prisoner in India, who ruled at Cabul as Shere Ali’s successor at the time of Sir Louis Cavagnari’s assassination—of Abdurrhaman Khan, long an exile in Russia, who now wears the most distinct badge of modern Afghan sovereignty by holding the three great cities of Cabul, Candahar, and Herat—of Ayub Khan, who, after inflicting on British Indian troops the first defeat in the open field which they had suffered for seventy-eight years, was utterly routed by the victorious General Roberts, and who, after another success against his rival Abdurrhaman, was finally defeated and compelled to take refuge in Persia. There were also the obscurer names of Abdulla Jan, now dead, who was a younger son of Shere Ali Khan, and who was long accepted by all except his elder brother as his father’s heir-apparent, and of Musa Khan, the son of Yakub, whom I have seen spoken of in the newspapers as the only legitimate claimant to the Afghan throne. All the princes I have named were in some sense pretenders to the throne, and they are all near kinsmen, being all descendants of Dost Mahomed Khan, against whom the British fought in the old Afghan war of forty-four years since, and in whose room they set up for a while a client of their own, Shah Suja. How was it that so many near relatives claimed to be the successors of the last reigning prince? Hardly one of them is entitled under the rules about succession to thrones to which we are accustomed. Shere Ali, after a hard struggle, succeeded his father, Dost Mahomed, but he was not his father’s eldest son. Yakub Khan was not Shere Ali’s eldest son, and he was all but supplanted by a much younger brother, Abdulla Jan, and was long imprisoned for questioning his claims. Abdurrhaman Khan, the now reigning Ameer, is not a son of Shere Ali at all, but the son of his elder brother, and yet not, it is thought, of his eldest brother. Ayub Khan, on the other hand, is a son of Shere Ali, but he is younger than his brother Yakub Khan, who has a son living, the Musa Khan who, as I said before, has been called the legitimate heir to the throne. How then come all these princes to be rivals of one another? How is it that there is no rule, as with us, to regulate (as we should say) the descent of the Crown?
The great difference between the East and West is that the Past of the West lives in the Present of the East. What we call barbarism is the infant state of our own civilisation. The rivalries of these Afghan princes bring us back to one of the oldest causes of war and bloodshed among men, the disputed succession to political sovereignty. And the source of these disputes is to be sought in an ancient fact too often neglected or forgotten. When political sovereignty first shows itself (and the stage of human history at which it shows itself is by no means the earliest ascertainable), this sovereignty is constantly seen to reside, not in an individual nor in any definite line of persons, but in a group of kinsmen, a House or Sept, or a Clan.
In Greek history, there is a later form of this sovereignty which has a name of its own; it is called a hegemony, the political ascendency of some one city or community over a number of subject commonwealths. But in more ancient times the royal or ruling body was more often a group of kinsmen, a Clan, or a Sept, called in India a Joint Family. In the ancient world, this group of royal kinsmen had often a purely fictitious pedigree, and pretended to be descended from a god; and there is an example of this claim in our own day, since the Emperor or Mikado of Japan, who has a Minister at the English Court, lays claim to a divine ancestry. Sometimes, however, the reigning House consists of the descendants of a known historical hero, as was the case with the most illustrious of all royal families, the Jewish princes descended from David, the son of Jesse. And just as among the Hebrews there were two rival royal clans, the princes of Judah and the princes of Israel, so also there have been rival clans pretending to the Afghan throne, and the old Afghan war was not so much a struggle between Dost Mahomed and Shah Suja as between the clans to which these chiefs belonged, the Suddozies and the Barukzies. Bloody wars have frequently been fought between the partisans of rival clans and houses, but in somewhat later times civil strife has chiefly raged between individual pretenders belonging to the same house. The reason of this is, that there are few things on which mankind were at first less agreed, few things on which their usages were less at one, than the rule which should determine which of the family should have its headship. We are so used to some form or other of Primogeniture as the system which regulates the devolution of crowns that we have some difficulty in understanding the ancient disputes of which I have spoken. Yet Primogeniture—to which as a political institution I may observe that the human race has been deeply indebted—did not at first appear in anything like the shape in which we are familiar with it; and, even when it approached that shape, its rules were subject to many uncertainties. On all sides we find evidence that, in the beginnings of history, quarrels were rife within reigning families as to the particular rule or usage which should invest one of the royal kinsmen with a primacy over the rest; and these quarrels bore fruit in civil wars. The commonest type of an ancient civil war was one in which the royal family quarrelled among themselves and the nobility or the people took sides. The madness of rivalry took possession of the chiefs and the people were smitten.
A very ancient, possibly the most ancient, method of settling these quarrels was that which has been called in our day Natural Selection. The competing chiefs fought it out, and the ablest, or the strongest, or the luckiest, lifted himself into supremacy. Now and then, one of the kinsmen has had the opportunity of crushing the others by a sudden blow, and this is the case of those massacres of princes which from time to time appear in Oriental history. One of them is described in that story in the Hebrew Chronicles which gives its plot to Racine’s fine play of ‘Athalie.’ Athaliah, the queen-mother in Judah, that ‘wicked woman,’ seeing that her son King Ahaziah was dead, arose and destroyed all the seed royal of the house of Judah. One child was saved and hidden in the house of God six years: and Athaliah reigned over the land (2 Chron. xxii. 10). More revolting, because more systematic, were the massacres of their near collateral relatives by the Ottoman Sultans; but the Turk who bore no brother near his throne had his excuse in a peculiar rule of royal succession of which I will say something presently. The atrocities of the Seraglio were more than matched only the other day by those committed in the palace at Mandalay by the present King of Burmah, Thebaw. I have little to say for a personage who in the course of a single week shed the blood of nearly every relative, male or female, within his grasp; but undoubtedly, when there is no clear rule of royal succession, the choice may unhappily lie between one of these massacres and prolonged and desolating civil war. Fortunately a great deal of the progressive civilisation of the human race has consisted in the discovery of remedies against violence; and the evil of dynastic contests has been so manifest, and so little tolerable, that men seem very early to have striven to find contrivances for preventing them. Such contrivances were indeed not absolutely new; most of them were still more ancient tribal or family usages put to a new use.
One of the most ancient of them is to obtain the peaceful consent of the community to the succession of a particular chief either before the death of the last reigning sovereign or immediately afterwards. An elective monarchy, much modified in its later form, survived till the last century in Poland, and the most august throne in Europe, that of the Empire, of the Roman or German Empire, was till the beginning of the present century open in theory, as Mr. Freeman puts it, to every baptized Christian. There are in fact few monarchies in whose records some trace of an original popular election or confirmation cannot be found, and there is even a survival of it in the ceremonies of an English Coronation. A convenient modification of the system, which removes a dangerous interval between prince and prince, is to have the election during the lifetime of the reigning chief or king; and thus, in Germany, a King of the Romans was generally chosen who was to become Emperor on the Emperor’s death. A precaution of the same class, particularly where there is a numerous progeny of princes produced by polygamy, lies in the appointment of his successor by the reigning chief during his lifetime. This on the whole seems to be the system of succession prevailing in Afghanistan. Shere Ali owed his throne to it and so would Shere Ali’s heir-apparent, Abdulla Jan, if he had lived. But that it has to compete with other ideas about succession is plain from the bloody civil war which followed Shere Ali’s accession and from the later quarrel on this very point between Yakub Khan and his father. The present Ameer, Abdurrhaman Khan, owes nothing to it. The weakness of the system lies in its tendency to produce the nomination of the child of some favourite wife, and thus to lead to endless palace-intrigues which sometimes bear fruit in civil war. Yet another contrivance, probably much older and in itself extremely rational, was once very widely diffused over the world, but has now only one field of operation among the European dynasties. This is the descent of the sovereignty to the oldest living male of the family. It still survives among the Turks. The present Sultan succeeded his brother, who had children; and Sultan Murad, who reigned for a few months, succeeded his uncle, though his uncle, Abdul Aziz, left male children. Where the system may be observed in its more barbarous form, we find it generally combined with that which I mentioned first, popular or tribal election. The Irish tribesmen and even the clansmen of the Scottish Highlands once elected their chiefs, but the former always chose the brother of the last chief, if of mature years, and the latter seem in very ancient times to have made similar elections. In warlike and perpetually disturbed societies there could be hardly a better principle to follow, for it has the great advantage of providing that the new chieftain shall be a grown and experienced man; and barbarism cannot afford to face the dangers of royal minorities. Its disadvantages do not begin till princes have begun to live in palaces amid luxury and ease. The heir-apparent then receives a training which more than compensates for his maturity of years. The seclusion in which he is kept, the jealousy with which all his energies are repressed by the reigning monarch, and his long familiarity with the harem, make it too probable that he will prove an incapable ruler if he is allowed to succeed. But the interests of the existing Chief, and still more of his children, are against the heir-apparent continuing to live. It is only in quite recent times that the next eldest male relative of a Turkish Sultan could be reasonably sure of the succession. The declaration that fratricide is a rule of the Ottoman State is attributed to Mahommed II., but the great example of the practice was set by Mahommed III., who massacred nineteen of his brothers and caused to be drowned twelve of his father’s wives who were supposed to be pregnant.
The system which I have described, that under which not the eldest son but the eldest male kinsman succeeds, now bears very generally the name of Tanistry, from the Celtic word which points to its practice in ancient Ireland. Tanistry seems to be the undoubted parent of Primogeniture as we know it. But this later system of succession to thrones, though in some respects a great advance on Tanistry, was not at all free from dangerous uncertainties when it was first followed, and indeed some of these uncertainties linger about it still. It was through one of such uncertainties that the fortunes of this country came to be mixed up with a disputed succession, and that our ancestors were engaged in a foreign war which lasted a hundred years and which entailed a bloody civil war as its consequence. The Royal House or Sept, whose disputed headship involved England in these calamities, was that of the Capetians, of the collective body of the descendants of Hugh Capet, who in 987 got himself elected King of the Franks, or French, and founded the feudal monarchy of the country which, by successive additions, has since become so famous under the name of France. The progeny of Hugh Capet, continued exclusively through males, is not extinct at the present moment, after nine centuries; but his male descendants, in the direct line of descent, came to an end in 1328. Philip the Fair, the man of strongest character in the whole line of French kings, with the possible exception of Henry IV. of France and Navarre, had died in 1314, leaving three sons who successively ascended the French throne under the names of Louis X., Philip V., and Charles IV. No one of these three kings left sons, but two of them left each a daughter, and one left three. Now Edward III. of England, who held the English Crown by an independent title, was a Capetian through his mother, Isabel, the ‘she-wolf of France’ of Gray’s well-known Ode. Isabel was a daughter of Philip the Fair. On the death of Charles IV. of France, the youngest of the three royal brothers who died without male issue, our Edward III. put in a claim to the French Crown. It is usual both with French and with English historians to describe this claim as wholly untenable, but, though I will not here discuss what is really a point of technical law, I will pause to say that this view of the utter baselessness of Edward’s title seems to me to be based partly on ignorance of certain peculiarities in ancient systems of law and partly on the assumption that certain legal rules, which were then unsettled, were as clearly recognised as they now are. There are some very ancient bodies of law which, though showing a decided preference for male inheritance, nevertheless permit the family to be continued through a daughter when the sons have failed. The ancient Hindu law required that in such a case the daughter should be2appointed, as the Sanscrit word is translated, to bear a son to her father. It is remarkable that this was the exact position of Edward III. He disclaimed the idea that France could be ruled by a woman, but he contended that, her brothers having died, she could transmit her father’s right to her own male child. There are other apparent objections to Edward III.’s claim, arising from the fact that all the sons of Philip the Fair had left daughters, but it may be shown from the law-books of the time that, even in the inheritance of private property, the rules of succession which were to prevail under such circumstances were still uncertain.
It is probable, then, that the argument of Edward III. was not considered in his day to be as untenable as all French and some English writers have represented it, but that it answered to some ideas about royal and other successions which were more or less current. But the point was no doubt regarded always as a doubtful one; and in fact in 1316, on the death of the eldest son of Philip the Fair, Louis X., who left a daughter, an Assembly of Notables, which is sometimes described as the States-General of France, had resolved that the French Crown descended exclusively to males and through males. Thus the question of law was fully and fairly raised; and it promptly fell under the only jurisdiction by which it could possibly be decided. It was put to the arbitrament of the sword. From the commencement of active hostilities by Edward III. to the close of the English invasion of France undertaken by Henry V., the years of war between the English and French were as nearly as possible a hundred and twenty, interrupted only once by a regular peace, and always on the question of royal succession; and this hundred years’ war, as historians now call it, left undoubtedly as a legacy, as the result of the fierce military habits which it produced, the bloody struggle known as the Wars of the Roses, in which, to say the truth, the symbols of the two contending royal houses, the White Rose and the Red, were no more to the turbulent and warlike English nobility than the blue and green colours of the racecourse which once divided the populace of Constantinople, the New Rome, into fierce and seditious factions. The English kings bore the title of King of France, and carried the French lilies on their arms, down to the beginning of the present century. In the repeated negotiations between the British Government and the first French Republic, which at last bore fruit in the hollow and transient Peace of Amiens, the question of giving up this title and armorial bearings played a considerable part, as may be seen from the Papers of Lord Malmesbury.
With this famous dispute between the English and French kings—a dispute in which the English people from the first heartily took part, and in which the French people first imbibed the national spirit which has ever since characterised them—with this dispute there are considerations connected which seem to me sufficiently interesting to deserve to occupy the rest of this paper. Some of this interest is literary; some is archæological; but some is practical. We Englishmen are satisfied to rest the title of our Royal House on the Act of Settlement, which limits the right of succession to the descendants of the Electress Sophia of Hanover. But in other countries the old doubts which caused the war of a hundred years have still vitality enough to affect practical politics. As I before stated, the Capetian Sept or House, composed on the principle laid down by the States-General of 1316, of males who spring from males, still continues. It embraces the elder branch of French Bourbons, represented by the Count de Chambord, the younger branch consisting of the Princes of Orleans, the Spanish Bourbons, and the Italian Bourbons sprung from them. King Alfonso of Spain is the son of a Bourbon father and a Bourbon mother, but he is a king in right of his mother, and he was engaged a few years since in a civil war with his cousin, Don Carlos, whose pretensions to the throne are derived exclusively through males. The conflict of title between the Count de Chambord and the Orleans princes is of another kind and of a more modern type. All of them are full Bourbons; but nevertheless the theory of sovereignty and government called Legitimism, which is still a factor in French and Spanish politics, is ultimately based on the assumption of a sort of sacred and indefeasible law regulating succession to the Crown, and placing it beyond competition and above popular sanction. There is no doubt that the belief in the existence of such a law first showed itself during the controversy between Edward III. and Philip of Valois.
This sacred and indefeasible law bears a familiar name. As it was at first conceived it was called the Salic law. It is not quite certain when men first began to suppose that the law thus designated applied to royal successions, but clearly this view prevailed both in England and France soon after the beginning of the hundred years’ war. What were the ideas about the Salic law which were common in this country from one hundred to one hundred and fifty years after the conclusion of this quarrel may be gathered from Shakespeare’s ‘Henry V.,’ act i. scene 2, where the English argument is put into the mouth of the Archbishop of Canterbury. It amounts to what lawyers call a plea in confession and avoidance. It admits the existence of a royal Salic law, but denies that it applied to the case of Edward III. and his rival. Now the Salic law, like the Capetian House, is still in existence, and we can put our finger on the very passage which was supposed to confer on Philip of Valois his title to the French throne. But both to the French argument and to the counter-argument which Shakespeare borrowed from the English chroniclers there is one fatal objection. The Salic law does not apply at all to thrones and to the succession to thrones. It merely regulates the succession to private property. When this most indisputable fact was first discovered in the sixteenth century by the rising learning of those times, there was a good deal of scandal in France and some little dismay. Montesquieu in the eighteenth century popularised the discovery; and Voltaire is never tired of jesting at the Salic law, which he had always supposed, he says, to have been dictated by an angel to Pharamond, the first Frankish king, and to have been written with a quill from the angelic wing. The Salic law might in fact be best described as a manual of law and legal procedure for the use of the free judges in the oldest and most nearly universal of the organised Teutonic Courts, the Court of the Hundred: it only mentions the king in so far as the king has authority in the Court. It was once supposed to contain a reference to some peculiar description of land called Salic land; but the new English edition3 clearly shows that the word ‘Salic’ is an interpolation, and that nothing is referred to except the private inheritance of simple land.
It becomes therefore a matter of some interest to search out the true origin of this celebrated rule (erroneously supposed to be contained in the Salic law), which not only excluded females from succession to thrones, but denied the royal office to the nearest male kinsman if his connection with the royal house was through a female. It is first to be observed that, at the time of which we are speaking, the middle of the fourteenth century, there were two systems of royal succession in existence of much greater antiquity than either the Royal House of England or the Royal House of France. One of these was followed by semi-barbarous tribes at the very extremity of Europe, but it is of immemorial age, and, as some think, almost as old as mankind itself. I have already called it Tanistry, the system under which the grown men of the tribe elect their own chief, generally choosing a successor before the ruling chief dies, and almost invariably electing his brother or nearest mature male relative. In the fourteenth century this system was confined to the so-called kings or chiefs of that part of Ireland which lay beyond the English Pale, but there is a far-off echo of the same system in the story which furnished a plot to the tragedy of ‘Hamlet,’ where the murdered king is succeeded not by his son, but by his brother, who strengthens his title (according to a usage also of the highest antiquity) by marrying the widow of his predecessor. The very memory of Tanistry would probably have died out of Europe if, a century later, this method of succession had not become that of a throne once the most exalted in Europe through the capture of Constantinople by the Ottoman Turks. The Sultanate in their hands followed this rule of descent, brother succeeding brother, but all trace of election by the people, if it ever existed, was lost. As followed by the Turks, the system of course excludes females, but it would probably have excluded them at all times, as its main object is to secure a military leader in the maturity of life.
The other system of regal succession to which I referred was that to the throne and crown of the Roman Empire, which still theoretically survived in Germany and Italy. This too was a system of election, but the right to have a voice in the choice of the Emperor had gradually become limited to a certain number of prelates and of princes once great officers of the Imperial Court. From one of these, whom we know as the Elector of Hanover, our own royal family is descended. The parentage of the elective Roman Empire may be traced to the acclaim of the Roman soldiery saluting a successful general as ‘Imperator;’ but since the fall of the Roman Republic, the Imperial dignity had a tendency to concentrate itself in particular families, a settled succession being procured by the practice of choosing the new Cæsar during the reigning Emperor’s life. In the more modern or Romano-German Empire, a successor might be elected, before the death of the reigning Emperor, under the name of the King of the Romans; and the same result followed in the practical limitation of the Imperial dignity to particular families, of whom the House of Austria was the last. The German Empire, considered as the direct successor of the Roman Empire, fell in 1806; but in our own day it has been revived without a revival of election and as a dignity hereditary in the Prussian Royal House.
When, then, France and England entered into their bloody war of a hundred years, which was to decide the place of women in royal successions, there were two systems of succession in Europe which would have undoubtedly excluded women from the throne. One would have shut them out from the most august dignity in the West, because it had been originally an honour conferred on a triumphant soldier. The other would have denied to them a petty Irish chieftainship, because the chief was intended to be a fighting man all his life. But in the monarchies which lay between these extremes, monarchies of the class which we call feudal, there was no settled rule excluding women, and still less their male children. See what had occurred in England as long as nearly two centuries before Edward III.’s time. The country had been desolated by the war between the Empress Matilda and Stephen of Blois, afterwards King Stephen of England. But Stephen’s claim to the throne was derived not from his father, but from his mother; and Matilda, herself a woman, and but faintly objected to by the English barons on that account, transmitted an unquestioned title to her son Henry II. How, then, came such a difference to arise between countries so alike as France and England then were—between monarchies not then divided by a silver streak of sea, since the English kings had ever since the Conquest ruled over more or less of France, sometimes over its most flourishing provinces, as vassals of the French king more powerful than their suzerain?
I will indicate as briefly as I can the chief conclusions to which a long, intricate, and difficult inquiry would lead us. All the Western European monarchies, lying between the Roman Empire and the tribal chieftainships of the Irish and of the Scottish Highlanders, were (to use a word which imperfectly expresses their characteristics) feudal. Now among the many things which may be said about the system known to us as Feudalism, one of the least doubtful is that it mixed up or confounded property and sovereignty. Every Lord of the Manor or Seigneur was in some sense a King. Every King was an exalted Lord of the Manor. This mixture of notions which we now separate had been unknown to the Romans of the Empire, and had somehow been introduced into the Western world by the barbarous conquerors of the Roman Imperial territories. If then we avert our eyes from the ideas about chiefship and kingship entertained by barbarous races—ideas generally associated with some form of the system which I have called Tanistry—and if we look to their ideas concerning the inheritance of property, we find the same uncertainty and difference of view about the right of women to succeed to it which we observe in the feudal monarchies. Here no doubt we come upon a set of phenomena of which the precise significance is much disputed in our day; but probably there would be general agreement in the statement which follows. The greatest races of mankind, when they first appear to us, show themselves at or near a stage of development in which relationship or kinship is reckoned exclusively through males. They are in this stage; or they are tending to reach it; or they are retreating from it. Many of them in certain contingencies, generally rare or remote, give women and the descendants of women a place in succession, and the question with modern inquirers is whether the place thus assigned to them is the survival of an older barbarism, now exemplified in savage races, which traced kinship exclusively through females, or whether it results from the dissolution, under various influences, of ‘agnatic’ relationship, that is, of relationship through males only.4 The position of women in these barbarous systems of inheritance varies very greatly. Sometimes they inherit, either as individuals or in classes, only when males of the same generation have failed. Sometimes they do not inherit, but transmit a right of inheritance to their male issue. Sometimes they succeed to one kind of property, for the most part movable property, which they probably took a great share in producing by their household labour; for example, in the real Salic law (not in the imaginary Code) there is a set of rules of succession which, in my opinion, clearly admit women and their descendants to a share in the inheritance of movable property, but confine land exclusively to males and the descendants of males. Indeed, it is not to be supposed that under a purely ‘agnatic’ system of relationship governing inheritance, women are wholly unprovided for. The idea is that the proper mode of providing for a woman is by giving her a marriage-portion; but when she is once married into a separate community consisting of strangers in blood, neither she nor her children are deemed to have any further claim on the parent group.
There is therefore a strong probability that, among the miscellaneous mass of barbarians of Aryan breed who overran Western and Southern Europe, all sorts of ideas prevailed about succession to property. Some would exclude the descendants of women altogether. Others would admit them in certain contingencies. I regard therefore these disputes about the right of succession to feudal monarchies as having their origin in differences of opinion about the inheritance of property, but as transferred by the feudal spirit to the descent of crowns.5 They are a late survival of very ancient differences of usage between barbarous communities, now mixed together as conquerors of the West. The claim of Edward III. to the French throne would have received favourable consideration as a claim to property by those most ancient Brahman lawyers who framed the Hindu law-books erroneously called by Western scholars Codes.
It will therefore be perceived that the question, as it presents itself to my mind, is not, why did Edward III. of England, the son of a Capetian Princess, become a pretender to the throne of France on the death of his three uncles without male issue, but rather, why were the ruling classes of the provinces then composing France so obstinately persuaded that nobody but a man descended through men from the founder of the Royal House could rightfully reign over them? I think there is an explanation of this strong conviction for which the Frenchmen of that day fought so stoutly. It is this. There are some peculiarities in the Royal House founded by Hugh Capet which, if not unique, are of extreme rarity. The Sept, or, as it is called in India, the Joint-Family, consisting of the male stock of the founder, of male descendants tracing their descent entirely through males, still exists, although not much less than 900 years have elapsed since Hugh Capet died, and moreover it shows no signs of dying out. Several times in the course of this long history it has seemed on the point of extinction. Twice has the reigning branch ended in three kings who had no male children. The direct descendants of Hugh Capet ended, as you have heard, in 1328. Then the Valois succeeded, and they too came to an end in three brothers who had no legitimate children, male or female, Francis II., Charles IX., and Henry III. But the fertility of some younger branch has always remedied the decay of the elder, and on the death of Henry III., Henry of Navarre took his place, just as a Valois had taken the place of the lineal heir of Hugh Capet. The same rule of the infecundity of the elder line being repaired by the fecundity of the younger, seems still to hold good. Of the Bourbons who are descended from Henry of Navarre, the branch of Condé was exhausted almost in our own day. The eldest branch of the same house seems likely to close with the childless Prince known as the Count de Chambord, and the elder branch of the Spanish House has only been continued through women. But the younger lines of all the Bourbon Houses are still prolific, represented by the French Princes of Orleans, by the Italian Bourbon Princes, and by the Spanish Princes descended from the first Don Carlos. All these Princes are the male issue, descended exclusively through males, of Hugh Capet, who, as I said, died nearly 900 years ago.
These facts are possibly not unexampled, but they are very unusual and extremely remarkable. Their rarity may be concealed from us by our English way of talking loosely about families who came in with the Conqueror, and through our English usage of tracing descent indiscriminately through males and females. No doubt there are longer genealogies which are matter of belief. The most illustrious of all, that of the House of David, is longer, but then the Kings of Judah were polygamous, and polygamy, though it sometimes produces sterility, occasionally results in families like that of the Shah of Persia, who not many years ago left eighty sons. In India there are pedigrees greatly longer, for there are princes claiming to descend from the Sun and the Moon. But I need scarcely say that the earlier names in these genealogical trees are those of fabulous personages, and indeed under a system of succession which, like most of the Indian systems, permits the adoption of children, there can be but little assurance of the absolute purity of male descent. It must at the same time be understood that I am not asserting the impossibility of pedigrees of this length, but only their rarity. It is said that genuine pedigrees almost as long may be found among the English gentry, but anybody can convince himself that among the English nobility a long continuity of male descents is very rare, though there are exceptions, a notable one being that of the Stanleys.
But, rare and striking as is this peculiarity in the family history of the Capetians, that House presented in the fourteenth century a phenomenon which is still rarer and still more impressive. The kings sprung from Hugh Capet succeeded one another, son to father or brother to brother, for more than 300 years. Through all this time there was no occasion to call in a remote collateral, an uncle or great-uncle or a cousin. How unusual is such a succession we can conceive ourselves by taking a very simple test. Let us take any half-dozen conspicuous men of a hundred years since, conspicuous in any way we please, statesmen or writers or simply of noble birth, and we shall find that their living descendants through males are few, though their descendants through women may be numerous. Go two hundred years back and you will see that the fewness of male descendants through males from men of eminence much increases, and if you go three hundred years back, it becomes6 extraordinary. The whole subject belongs to a branch of the theory (as it is called) of Heredity which has not been perfectly investigated as yet, and which it would be out of place to discuss here. I think, however, that it is not too bold a proposition that the greater the eminence of the founder of a non-polygamous family, the greater on the whole is the tendency of the family to continue itself (if it continue at all) through women in the direct line; and that the best securities for a pure pedigree through males are comparative obscurity and (I could almost say) comparative poverty, if not extreme. The rule is of course only approximate, and the example of the Capetian dynasty sufficiently shows that there are exceptions to it. At the same time, the position of the early Capetians must not be judged by the splendour of the late Kings of France. They were comparatively poor and comparatively obscure, and for long could hardly make head against even the humbler of their nominal vassals.
This, then, I believe to be the true secret of the so-called Salic rule of succession. There is nothing, even now, very uncommon in the frame of mind which leads men to think that everything, of which they know or remember nothing to the contrary, has existed from all time and that it ought to continue for ever. But in an age in which historical knowledge was all but non-existent, and in which the mass of mankind lived by usage, such a habit of thought must have been incomparably stronger; and we cannot doubt that men’s minds were powerfully affected by this uninterrupted continuation of male descents in the royal family of France, which even to us is impressive. Nobody, they would say, has reigned in France but a King the son of a King. There had been no occasion to call to the throne a collateral relative, much less a kinsman through women. Amid a general flux of men’s ideas on the subject of succession to thrones, the French law would at all events have appeared to have solidified. And, such being the preconceived notions of Frenchmen, there is no doubt that they were strengthened by the provision of the real Salic law, which said that land—or, as it was once read, Salic land—should descend exclusively to males through males. This legal provision was in fact irrelevant to the question, but it may very easily have been misunderstood; and it is a significant circumstance that manuscripts of the true Salic Code, the Lex Salica of the Germans, appear to have been found in the Royal Library at Paris from the time of its first foundation.
The supposed Salic rule, excluding women and their descendants from royal successions, has been adopted in later days in many countries in which women were at one time permitted to succeed. In constitutionally governed States, female successions have always been popular; and quite recently, in Spain and Portugal, the establishment of constitutional government coincided with the overthrow of the rule which excluded queens from the throne. The Spanish monarchy was composed of portions in most of which the throne might be filled by a woman, but when the younger branch of the Bourbons obtained the Crown of Spain, they introduced the so-called Salic rule. This system of succession is manifestly thought to be convenient wherever, whether there be a Constitution or not, a large measure of authority resides with the sovereign. Thus the succession to the German Empire, following that of the Prussian kingdom, is now Salic; and in Russia, where an extremely peculiar rule of succession prevailed, one of the most usual successions being that of the widow of the late Emperor, the exclusive devolution of the Crown through males on males was for the first time introduced by the Emperor Paul I.
The explanation given by French historians of the memorable rule which first sprang up in their country has nothing to do with reasons of convenience. They say that the exclusion of women and their issue was the fruit of the intense national spirit of Frenchmen. If it had not been for this principle the King of France might have been an Englishman, or a German, or a Spaniard, according to the nationality of his mother’s husband; and this was contrary to the genius of France, which imperatively required that the King should be a Frenchman. But this is the error, not so very uncommon in the philosophy of history, of taking the consequence for the cause. It was not the national spirit of Frenchmen which created the Salic rule, but the Salic rule had a great share in creating the French national spirit. No country grew together originally so much through chance and good luck as France. Originally confined to a small territory round Paris, province after province became incorporated with it through feudal forfeitures, through royal marriages, or through the failure of lines of vassals even more powerful than the King to whom they owed allegiance. But owing to the Salic rule, the King always belonged to the heart and core of the monarchy. The King of England who first annexed Ireland was a Frenchman. The King of England who united Scotland with her was a Scotchman. But the King of France was from first to last born and educated a Frenchman. The same vein of character may be seen running through the whole series of French Kings, broken only perhaps in the unhappy Prince who closed the dynasty in the last century. Hence the whole authority of the French Kings was exerted to bring each successive acquisition of the Crown into political and social conformity with the original kernel of the kingdom. And in this way was created the French love of unity, the French taste for centralisation, the French national spirit. The undoubted power which France possesses of absorbing into herself and imbuing with her national character all the populations united with her has been attributed to the French Revolution; in reality it is much older, and may be traced in great part to the Salic rule of royal succession.
[1 ]The difficulty is caused by the composition of the class of Mahommedan Inheritors known as the Sharers. The two remaining classes seem to exhibit the usual preference of Agnates to Cognates.
[2 ]See above, Chapter IV.
[3 ]See below, Chapter VI. p. 169.
[4 ]I have endeavoured to state the alternative theories as I suppose they would have presented themselves to the mind of Mr. J. F. McLennan, prematurely lost to this branch of inquiry, who has forced all interested in them to revise or review their opinions.
[5 ]The most general feudal rule about succession to fiefs is that contained in the Customs of Normandy; but the compiler, as is usual with such writers, gives merely feudal reasons for it. Thus, after stating that the rule forbidding one uterine brother to succeed to another (cum a parentibus suis non descendit) is subject to exception in the case of a fief descending from the mother, he goes on to say ‘procreati autem ex feminarum lineâ, vel feminæ successionem non retinent dum aliquis remanserit de genere masculorum.’
[6 ]The subject, as respects the pedigrees of the nobility, is discussed by Mr. Hayward in a very interesting paper in his Biographical and Critical Essays, Third Series, ‘English, Scotch, Irish, and Continental Nobility.’ See page 260. ‘It is quite startling on going over the beadroll of English worthies, to find how few are directly represented in the male line.’