Chapter 8

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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CHAP. IX.

_Of the Right of Wearing a large Head of Hair peculiar to the Royal Family._

It will not be amiss in this Place to give some Account of a Custom of our Ancestors, relating to the Hair worn by the Royal Family: For 'tis recorded, that our Forefathers had a particular Law concerning it; _viz._ That such as were chosen Kings by the People, or were of the Regal Family, shou'd preserve their Hair, and wear it parted from the Forehead, on both Sides the Head, and anointed with sweet Oyl, as an Ornament and peculiar Mark of their being of the Royal Family; whilst all other Persons, how nobly born soever, had no right to wear a large Head of Hair; but were obliged to go with their Heads shorn or shaved, upon the Account (as 'tis probable) that they shou'd be more ready and expedite in their continual military Exercises, as the _Roman_ Histories tell us of _Julius Cæsar_, and several others. _Aimoinus_ lib. I cap. 4. says--"The _Franks_ chusing for themselves a King, according to the Custom of other Nations, raised, _Pharamond_ to the Throne, to whom succeeded his Son Clodio crinitus; For at that Time the Kings of the _Franks_ wore large Heads of Hair. Also lib. 3. cap. 61. _Gundoaldus_ being brought up by his Mother after the regal Manner, wore a long Head of Hair, according to the Custom of the ancient Kings of the _Franks_." In like Manner _Agathius_, lib. de Bell. Goth. I. where he speaks of _Clodoveus_, one of our Kings, who was taken in Battel by the _Burgundians_, (he calls him _Clodamirus_). "As soon (says he) as his Horse had thrown him, the _Burgundians_ espying his large Head of Hair, which fell back over his Shoulders, presently knew him to be the Enemy's _General_; for 'tis not lawful for the Kings of the _Franks_ to cut off their Hair, but even from their Childhood they remain untrimm'd, and always keep a large Head of Hair hanging low down upon their Backs." And we have many Instances that it was our Ancestors Custom, whenever they either deprived any one of the Crown, or took away all Hopes of obtaining the Kingdom, to cut off his Head of Hair. _Aimoinus_ in the same Place--"He earnestly beholding him, commanded his Hair to be cut off, denying him to be his Son.--Also--Having caused his Hair to be cut off a second Time, he put him in Prison at _Cologne_; from whence making his Escape, he fled to _Narses_, and suffer'd his Hair to grow again, &c." Which Story _Gregory_ of _Tours_, lib. 6. cap. 24. likewise records. Also _cap._ 44. where he speaks of King _Theodorick_.--"The Franks (says he) rose up in Arms against him, and cast him out of the Kingdom, and cut off his Head of Hair by Force." But there is a very remarkable, or rather horrible Story related by _Gregory_ of _Tours_, concerning _Crotilda_, the Queen Mother; who chose rather to have the Heads of her two Grandsons cut off than their Hair. 'Tis in his 3d Book, _cap._ 18.--"Our Mother (says the King to his Brother) has kept our Brother's Sons with her, and intends to advance them to the Throne; we must concert what Measures ought to be taken in this Affair; whether we shall order their Hair to be cut off, and to reduce them to the State of common Subjects; or whether we shall cause them to be put to Death, and afterwards divide the Kingdom between us: Then they sent _Archadius_ with a Pair of Scissars in one Hand, and a naked Sword in t'other to the Queen; who approaching her, showed them both to her, and said, Your Sons, most Glorious Queen, have sent me to know your Pleasure, what Destiny you are pleased to allot to these two Youths; whether by suffering their Hair to be cut off, you will have them to live; or whether you had rather have both their Throats cut. Whereupon She chose rather to see them both kill'd, than to have their Hair cut off." I further observe, that it was the Fashion when our Kings went to single Combat, to have their long Hair tied up in a large Knot a-top of their Helmets like a Crest; and that was their Cognizance or Mark in all their Fights. Therefore _Aimoinus_, lib. 4. cap. 18. where he speaks of the dreadful Combat between King _Dagobert_ and _Bertoaldus_, Duke of the _Saxons:_ "The King (says he) having his Hair, together with a Part of his Helmet, cut off with a Blow of a Sword on his Head, sent them by his Esquire to his Father, desiring him to hasten to his Assistance."

Now when I consider what might be the Reasons of this Institution, I can find none but this. That since it had been the ancient Custom of the _Gauls_ and _Franks_ to wear their Hair long (as it was also of the _Sicambri_, and of most others in those Parts) our Ancestors thought fit to continue, and in Process of Time to appropriate this Ornament, and Mark of Distinction to the Regal Family. No Person, tho' but indifferently learn'd, needs any Proof that the _Gauls_ wore their Hair long, especially when he calls to mind that of the Poet _Claudian_, ex lib. in Ruffin. 2.

_Inde truces flavo comitantur vertice_ Galli _Quos_ Rhodanus _velox_, Araris _quos tardior ambit_, _Et quos nascentes explorat gurgite_ Rhenus.

Now that the _Franks_ did so too, whom we have shewn to be descended from the _Chauci_ or _Chaiici_, that single Passage of the Poet _Lucan_ is sufficient to confirm.

_Et vos_ Crinigeros _bellis arcere_ Chaycos _Opposui, petitis_ Roman, &c.

Which being so, we may easily comprehend the Reason why Strangers, who were ill affected towards our Nation, contumeliously called our Kings, who wore so great a Head of Hair, _Reges setatos, bristled Kings_; and not only so, but (tho' Bristles and long Hair be common to Lyons, Horses and Swine, all which are therefore called _Setosi_, or _Setigeri_) they stretched the Contumely so far, as to say, they had Hogs Bristles. From whence arose that filthy Fiction and foul Name, [Greek: trichorachaton] of which _Georgius Cedrenus_ writes thus in his History, [Greek: "Helegonto de hoi ek tou genous hekenou katagomenoi kristatoi ho hermêneuetai trichorachai heichon gar kata tês racheôs autôn trichas ekphuomenas hôs choiroi"] that is, "They who were of the Kingly Race were called _Cristati_, which may be interpreted _Bristleback'd_; because they had all along their Back bones, Bristles growing out like Swine"--, Which Passage of _Cedrenus_, I believe, is corrupted, and instead of the Word [Greek: kristatoi], ought to be [Greek: setatoi], or perhaps both. For as some Persons called them pleasantly _Christati_ by Reason of their large erected Bunch of Hair upon the Tops of their Helmets; so their Ill-Willers called them upbraidingly _Setati_, or _Setigeri_. If _Cedrenus_ had not been so very plain in this Passage, and the Appellation of _Cristati_ be to be retained, I shou'd rather have thought they might have been called [Greek: trichocharaktoi], as being remarkable for their large Heads of Hair.

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CHAP. X.

_The Form and Constitution of the_ Francogallican _Government_.

These Things being thus briefly premised, we think it proper now to set forth in what Manner the Kingdom of _Francogallia_ was constituted. And we have already made it plain, that the _People_ reserv'd to themselves all the Power not only of _Creating_, but also of _Abdicating_ their _Kings_. Which Form of Government 'tis manifest our Ancestors had; before they were brought under by the _Romans_, "So that _the People_ (as _Cæsar_ tells us) _had no less authority and Power over their Kings, than the Kings had over the People_. Populus non minus in Regem, quam rex in populum imperii ac Potestatis retinet." Altho' 'tis probable the _Franks_ did not derive this Constitution of their Commonwealth from the _Gauls_; but from their Countrymen, the _Germans_; of whom _Tacitus_, lib. de mor. _Germ._ says,--"Regibus non est infinita aut libera Potestas. Their _Kings_ have not an _Arbitrary_ or _Unlimited Power_." Now 'tis manifest, that no Form of Government is more remote from Tyranny, than this: for not one of the three distinguishing Marks, or Characteristicks of _Tyranny_, which the old Philosophers make mention of, can be found in the Form and Constitution of our Government. First, as to a forced Obedience; _i. e._ that a King shou'd rule over a People against their Wills; we have shewn you already, that the _Supreme Power_, both of _Electing_ and _Abdicating_ their _Kings_, was in the _People_. Secondly, as to a Life-guard composed of Foreigners, (which they reckon the Second Mark of _Tyranny_); so far were our _Francogallian_ Kings from making use of Mercenary Strangers for their Guards, that they had not so much as their own Countrymen and Citizens, for that Purpose; but placed their whole Trust and Confidence in the Love and Fidelity of their Subjects; which they thought a sufficient Guard.

As an Argument of this, we may observe what _Gregory of Tours_ writes, lib. 7. cap. 18. and _Aimoinus_, lib. 3. cap. 63.--"King _Gontrannus_ being inform'd by an ordinary Fellow at _Paris_, that _Faraulphus_ lay in Wait for him, presently began to secure his Person by Guards and Weapons; so that he went no whither (not even to the Holy Places) without being surrounded with armed Men and Soldiers." We have at present a very famous History extant of St. _Lewis_, written by that excellent Person _Joannes Jonvillæus_, who lived very familiarly with that King for many Years; in which whole History there is not the least Mention made of Guards or Garisons, but only of Porters or Doorkeepers; which in his native Tongue, he calls Ushers.

Now as to the third Mark of _Tyranny_, which is when Matters are so carried, that what is done tends more to the Profit and Will of the _Person governing_, than to that of the _governed_, or the Good of the _Commonwealth_; we shall hereafter prove, that the _Supreme_ Administration of the _Francogallican Kingdom was lodged in the Publick Annual Council of the Nation, which in After-Ages was called the Convention of the Three Estates_. For the Frame of this Government was the very same which the _Ancient Philosophers_, and among them _Plato_ and _Aristotle_ (whom _Polybius_ imitates) judged to be the best and most excellent in the World, as being made up and constituted of a Mixture and just Temperament of the three Kinds of Government, _viz._ the _Regal, Noble_, and _Popular_. Which Form of a _Commonwealth, Cicero_ (in his Books _de Republicâ_) prefers to all other whatsoever. For since a _Kingly_ and a _Popular_ Government do in their Natures differ widely from each other, it was necessary to add a _third_ and _middle State_ participating of both, _viz._ that of the _Princes_ or _Nobility_; who, by Reason of the Splendor and Antiquity of their Families, approach, in some Degree, to the _Kingly Dignity_; and yet, being _Subjects_, are upon that Account on the same Foot and Interest with the _Commons_. Now of the Excellency of this Temperament in a Commonwealth, we have a most remarkable Commendation in Cicero, taken by him out of _Plato_'s Books _de Republicâ_; which, because of its singular Elegancy, we shall here insert at length.

"Ut in fidibus (inquit) ac tibiis, atque cantu ipsò, ac vocibus, tenendus est quidam concentus ex distinctis sonis, quem immutatum ac discrepantem aures eruditæ ferre non possunt; isque concentus ex dissimillimarium vocum moderatione concors tamen efficitur, & congruens; Sic ex summis, & mediis, & infimis interjectis ordinibus, ut sonis, moderatâ ratione _civitas_, consensu dissimillimorum concinit, & quæ _harmonia_ a musicis dicitur in _cantu_, ea est in _Civitate concordia_: arctissimum atq; optimum in Repub. vinculum incolumitatis, quæ fine justitiâ nullo pacto esse potest. _i. e._ As in Fiddles and Flutes, and even in Singing and Voices, a certain Consort of distinct Sounds is to be observed; which if it be alter'd, or not tunable, skilful Hearers cannot bear or endure: And this Consort of very different Tones, is, through as just Proportion of the Notes, rendred Concord, and very agreeable: Even so a Commonwealth, judiciously proportioned, and composed of the _first_, the _middlemost_, and the _lowest_ of the _States_, (just as in the Sounds) through the Consent of People very unlike to each other, becomes agreeable: And what Musicians in Singing call _Harmony_, that in a Commonwealth is _Concord_; the very best and strongest Bond of Safety for a Government, which can never fail of being accompanied with _Justice_." Our Ancestors therefore following this Method, of a just Mixture of all the three Kinds, in the constituting their Commonwealth, most wisely ordained, that every Year on the _Calends_ of _May_, a Publick _Council_ of the whole Nation should be held: at which _Council_ the great Affairs of the Republick shou'd be transacted by the common Consent and Advice of all the _Estates_. The Wisdom and Advantage of which Institution, appears chiefly in these three things: First, That in the Multitude of prudent Counsellors, the Weight and Excellency of Counsel shews it self more apparently, as _Solomon_ and other Wise Men have said. Secondly, _Because it is an essential part of liberty, that the same persons, at whose cost and peril any thing is done, shou'd have it done likewise by their authority and advice: for_ ('tis a common Saying) _what concerns all, ought to be approved by all_. Lastly, That such Ministers of State as have great Power with the Prince, and are in high Employments, may be kept within the Bounds of their Duty, thro' the Awe they stand in of this _great Council_, in which all the Demands and Grievances of the Subject are freely laid open.--"For such Kingdoms as are ruled by the arbitrary Will and Pleasure of _one Prince_, may most justly (as _Aristotle_ in his third Book of Politicks observes) be reckon'd Governments of Sheep; and brute Beasts, without Wit or judgment; not of Freemen, who are endued with Understanding, and the Light of Reason." The Case is thus--That even as Sheep are not guided or tended by one of their own Kind, nor Boys govern'd by one of themselves, but by something of more Excellency; even so a Multitude of Men ought not to be ruled and govern'd by one single Person, who perhaps understands and sees less than several others among them; but by many select Persons, who, in the Opinion of all Men, are both very prudent and eminent; and who act by united Counsels, and, as it were, by one Spirit, composed and made up of the Minds of many Wise Men.

Now whereas it may be objected, that most Kings have a constant _Privy Council_ to advise them in the Administration of publick Affairs: We answer, That there is a great deal of Difference between a Counsellor of the _King_, and a Counsellor of the _Kingdom_. This last takes care of the Safety and Profit of the whole Commonwealth; the other serves the Humour and studies the Conveniences of one Man only; and besides, these King's Counsellors reside, for the most part, in one certain Place; or at least near the Person of the Prince, where they cannot be supposed to be throughly acquainted with the Condition of the more remote Cities or Provinces; and being debauched by the Luxury of a Court life, are easily depraved, and acquire a lawless Appetite of Domineering; are wholly intent upon their own ambitious and covetous Designs; so that at last they are no longer to be consider'd as Counsellors for the Good of the Kingdom and Commonwealth, but Flatterers of a single Person, and Slaves to their own and Prince's Lusts.