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Salic law

Record of a judgement by Childebert III

Salic law ( or ; Latin: Lex Salica), or Salian Law, was the major body of Frankish law governing all the Franks of Frankia under the rule of its kings during the Old Frankish Period, in the early Middle Ages. The laws were maintained in written form in the Latin language by a committee empowered by the monarch. Dozens of manuscripts dated from the 8th century of a putative original recension in the 6th century and three emendations as late as the 9th century have survived.[1]

Salic law provided written codification of both civil law, such as the statutes governing inheritance, and criminal law, such as the punishment for murder. It has had a formative influence on the tradition of statute law that has extended to modern times in Central Europe, especially in the German states, France, Belgium, the Netherlands, parts of Italy, Austria and Hungary, Romania, and the Balkans.

Contents

  • History of the law 1
    • Merovingian phase 1.1
    • Carolingian phase 1.2
  • The language question 2
  • Some tenets of the law 3
    • Agnatic succession 3.1
    • Female inheritance 3.2
  • Applications of the succession and inheritance laws 4
    • In France 4.1
    • Other European applications 4.2
  • Literary references 5
  • See also 6
  • References 7
  • Bibliography 8
  • External links 9

History of the law

King Clovis dictates the Salic Law surrounded by his military chiefs.

The original edition of the code was commissioned by the first king of all the Franks, Clovis I (c. 466–511), earlier than its publication date sometime between 507 and 511.[2] He appointed four commissioners[3] to research uses of laws that, until the publication of the Salic Law, were recorded only in the minds of designated elders, who would meet in council when their knowledge was required. Transmission was entirely oral. Salic Law therefore reflects ancient usages and practices.[4] In order to govern more effectively, it was desirable that monarchs and their administrations have a written code. The name of the code comes from the circumstance that Clovis was a Merovingian king ruling only the Salian Franks before his unification of Frankia. The law must have applied to the Ripuarian Franks as well; however, containing only 65 titles, it may not have included any special Ripuarian laws.

For the next 300 years the code was copied by hand and was amended as required to add newly enacted laws, revise laws that had been amended, and delete laws that had been repealed. More so than printing, hand copying is an individual act by an individual copyist with ideas and a style of his own. Each of the several dozen surviving manuscripts features a unique set of errors, corrections, content and organization. The laws are called "titles" as each one has its own name, generally preceded by de, "of, concerning." Different sections of titles acquired individual names revealing something about their provenances. Some of these dozens of names have been adopted for specific reference, often given the same designation as the overall work, lex.

Merovingian phase

The recension of

  • websiteBibliotheca legum regni Francorum manuscripta and its manuscript tradition on the Salic lawInformation on the , A database on Carolingian secular law texts (Karl Ubl, Cologne University, Germany).

External links

  • Young, Christopher; Gloning, Thomas (2004). A History of the German Language through Texts. London and New York: Routledge. 
  • Taylor, Craig (2006). "The Salic Law, French Queenship and the Defence of Women in the Late Middle Ages". French Historical Studies 29: 54–564. 
  • Taylor, Craig (2001). "The Salic Law and the Valois succession to the French crown". French History 15: 358–377.  
  • Taylor, Craig, ed. (2006). Debating the Hundred Years War. "Pour ce que plusieurs" (La Loy Salique) and "A declaration of the trew and dewe title of Henrie VIII". Camden 5th series. Cambridge: Cambridge University Press.  
  • Kern, Hendrik (Contributor) (1880). Hessels, J.H, ed. Lex Salica: the Ten Texts with the Glosses and the Lex Emendata. London: John Murray. 
  • Hinckeldey, Christoph; Fosberry, John (Translator) (1993) [1981]. Criminal justice through the ages: from divine judgement to modern German legislation. Schriftenreihe des Mittelterlichen Kriminalmuseums Rothenburg ob der Tauber, v. 4. Rothenburg ob der Tauber (Germany): Mittelalterliches Kriminalmuseum. 
  • Drew, Katherine Fischer (1991). The laws of the Salian Franks (Pactus legis Salicae). Philadelphia: University of Pennsylvania Press. ISBN 0-8122-8256-6/ISBN 0-8122-1322-X. 
  • Cave, Roy; Coulson, Herbert (1965). A Source Book for Medieval Economic History. New York: Biblo and Tannen. 

Bibliography

  1. ^ Drew 1991, p. 53.
  2. ^ Hinckeldey & Fosberry 1993, p. 7.
  3. ^ Janson, Tore (2011). History of languages: an introduction. Oxford textbooks in linguistics. Oxford: Oxford University Press. p. 141. 
  4. ^ Drew 1991, p. 20.
  5. ^ Kern 1880, Prologue.
  6. ^ Kern 1880, p. xiv.
  7. ^ Young & Gloning 2004, p. 56.
  8. ^ Kern 1880, p. xv.
  9. ^ a b c Kern 1880, p. xvii.
  10. ^ "The Dutch Language". Livius.org. Retrieved 2006-09-20. 
  11. ^ Cave, Roy and Coulson, Herbert. A Source Book for Medieval Economic History, Biblo and Tannen, New York (1965) p.336
  12. ^ G. M. Fraser (2006) Royal Flash, p. 172, Grafton paperback.

References

See also

"The hostess, a civil, quiet, laborious drudge, came to take his orders for dinner, but declined to make answer on the subject of the horse and guide; for the Salique Law, it seems, extended to the stables of the Golden Candlestick." (Chapter XX1X)
  • In his novel Waverley, Sir Walter Scott quotes "Salique Law" when discussing the protagonist's prior requests for a horse and guide to take him to Edinburgh.
  • In the novel Flashman, on his marriage, is presented with the Royal Consort's portion of the Crown Jewels, and "The Duchess did rather better"; the character, feeling hard done-by, thinks, "It struck me then, and it strikes me now, that the Salic Law was a damned sound idea".[12]
  • Shakespeare uses the Salic Law as a plot device in Henry V, saying it was upheld by the French to bar Henry V’s claiming the French throne. The play Henry V begins with the Archbishop of Canterbury being asked if the claim might be upheld despite the Salic Law. The Archbishop replies, "That the land Salique is in Germany, between the floods of Sala and of Elbe". The law is German, not French. The Archbishop's justification for Henry's claim, which Shakespeare intentionally renders obtuse and verbose (for comedic as well as politically expedient reasons), is also erroneous, as the Salian Franks settled along the lower Rhine and Scheldt, which today is for the most part in the Flemish Region.

Literary references

In a similar way, the thrones of the Kingdom of the Netherlands and the Grand Duchy of Luxembourg were separated in 1890, with the succession of Princess Wilhelmina as the first Queen regnant of the Netherlands. As a remnant of Salic law, the office of the reigning monarch of the Netherlands is always formally known as 'King' even though her title may be 'Queen'. Luxembourg passed to the House of Orange-Nassau's distantly-related agnates, the House of Nassau-Weilburg. However, that house too faced extinction in the male line less than two decades later. With no other male-line agnates in the remaining branches of the House of Nassau, Grand Duke William IV adopted a semi-salic law of succession so that he could be succeeded by his daughters.

The British and Hanoverian thrones separated after the death of King William IV of the United Kingdom and of Hanover in 1837. Hanover practised the Salic law, while Britain did not. King William's niece Victoria ascended to the throne of Great Britain and Ireland, but the throne of Hanover went to William's brother Ernest, Duke of Cumberland. Salic law was also an important issue in the Schleswig-Holstein question, and played a weary prosaic day-to-day role in the inheritance and marriage decisions of common princedoms of the German states such as Saxe-Weimar, to cite a representative example. It is not much of an overstatement to say that European nobility confronted Salic issues at every turn and nuance of diplomacy, and certainly, especially when negotiating marriages, for the entire male line had to be extinguished for a land title to pass (by marriage) to a female's husband—women rulers were anathema in the German states well into the modern era.

In the modern kingdom of Italy under the house of Savoy the succession to the throne was regulated by Salic law.

A number of military conflicts in European history have stemmed from the application of, or disregard for, Salic law. The Carlist Wars occurred in Spain over the question of whether the heir to the throne should be a female or a male relative. The War of the Austrian Succession was triggered by the Pragmatic Sanction in which Charles VI of Austria, who himself had inherited the Austrian patrimony over his nieces as a result of Salic law, attempted to ensure the inheritance directly to his own daughter Maria Theresa of Austria, this being an example of an operation of the Semi-Salic law.

Other European applications

Shakespeare claims that Charles VI rejected Henry V's claim to the French throne on the basis of Salic law's inheritance rules, leading to the Battle of Agincourt. In fact, the conflict between Salic law and English law was a justification for many overlapping claims between the French and English monarchs over the French Throne.

In 1328, at latest, the Salic Law needed a further interpretation to forbid not only inheritance by a woman, but inheritance through a female line, in order to bar the male Edward III of England, descendant of French kings through his mother Isabel of France, from the succession. When the Direct Capetian line ended, the law was contested by England, providing a putative motive for the Hundred Years' War.

This law was by no means intended to cover all matters of inheritance — for example, not the inheritance of movables – only those lands considered "Salic" — and there is still debate as to the legal definition of this word, although it is generally accepted to refer to lands in the royal fisc. Only several hundred years later, under the Direct Capetian kings of France and their English contemporaries who held lands in France, did Salic law become a rationale for enforcing or debating succession. By then somewhat anachronistic (there were no Salic lands, since the Salian monarchy and its lands had originally emerged in what is now the Netherlands), the idea was resurrected by Philip V in 1316 to support his claim to the throne by removing his niece Jeanne from the succession, following the death of his nephew John.

Notwithstanding Salic law, when Francis II of Brittany died in 1488 without male issue, his daughter Anne succeeded him and ruled as duchess of Brittany until her death in 1514. (Brittany had been inherited by women earlier – Francis's own dynasty obtained the duchy through their ancestress Duchess Constance of Brittany in the 12th century.) Francis's own family, the Montfort branch of the ducal house, had obtained Brittany in the 1350s on the basis of agnatic succession, and at that time, their succession was limited to the male line only.

Jurists later resurrected the long-defunct Salic law and reinterpreted it to justify the line of succession arrived at in the cases of 1316 and 1328 by forbidding not only inheritance by a woman but also inheritance through a female line (In terram Salicam mulieres ne succedant).

In 1328, a further limitation was needed, to bar inheritance by a male through a female line. A number of excuses were given for these applications of succession, such as "genealogical proximity with the king Saint Louis"; the role of monarch as war leader; and barring the realm going to an alien man and his clan through a woman, which also denied an order of succession where an alien man could become king of France by marriage to its queen, without necessarily having any French blood himself. Also, in 1316 the rival heir was a five-year-old female and powerless compared with the rival. In 1328, the rival was the king of England, against which France had been in a state of intermittent war for over 200 years. As far as can be ascertained, Salic law was not explicitly mentioned.

In 1316, King John I the Posthumous died, and for the first time in the history of the House of Capet, a king's closest living relative upon his death was not his son. French lords (notably led by the late king's uncle, Philip of Poitiers, the beneficiary of their position) wanted to forbid inheritance by a woman. These lords wanted to favour Philip's claim over John's half-sister Joan (later Joan II of Navarre), but disqualify her future claim to the French throne, and any possible future claims of Edward III of England. These events later led to the Hundred Years' War (1337–1453).

In France

Applications of the succession and inheritance laws

Strictly seen, this fulfills the Salic condition of "no land comes to a woman, but the land comes to the male sex". This can be called a Quasi-Salic system of succession and it should be classified as primogenitural, cognatic, and male.

From the Middle Ages, we have one practical system of succession in cognatic male primogeniture, which actually fulfills apparent stipulations of original Salic law: succession is allowed also through female lines, but excludes the females themselves in favour of their sons. For example, a grandfather, without sons, is succeeded by his grandson, a son of his daughter, when the daughter in question is still alive. Or an uncle, without his own children, is succeeded by his nephew, a son of his sister, when the sister in question is still alive.

The so-called Semi-Salic version of succession order stipulates that firstly all male descendance is applied, including all collateral male lines; but if all male agnates become extinct, then the closest female agnate (such as a daughter) of the last male holder of the property inherits, and after her, her own male heirs according to the Salic order. In other words, the female closest to the last incumbent is regarded as a male for the purposes of inheritance/succession. This is a pragmatic way of putting order: the female is the closest, thus continuing the most recent incumbent's blood, and not involving any more distant relative than necessary (see, for example: Pragmatic Sanction of 1713 in Austria). At that order, the original primogeniture is not followed with regard to the requisite female. She could be a child of a relatively junior branch of the whole dynasty, but still inherits thanks to the longevity of her own branch.

In its use by hereditary monarchies since the 15th century, aiming at agnatic succession, the Salic law is regarded as excluding all females from the succession as well as prohibiting succession rights to transfer through any woman. At least two systems of hereditary succession are direct and full applications of the Salic Law: agnatic seniority and agnatic primogeniture.

The wording of the law, as well as common usages in those days and centuries afterwards, seems to support an interpretation that inheritance is divided between brothers. And, if it is intended to govern succession, it can be interpreted to mandate agnatic seniority, not a direct primogeniture.

As actually interpreted by the Salian Franks, the law simply prohibited women from inheriting, not all property (such as movables), but ancestral "Salic land"; and under Chilperic I sometime around the year 570, the law was actually amended to permit inheritance of land by a daughter if a man had no surviving sons. (This amendment, depending on how it is applied and interpreted, offers the basis for either Semi-Salic succession or male-preferred primogeniture, or both).

concerning terra Salica no portion or inheritance is for a woman but all the land belongs to members of the male sex who are brothers.'

or, another transcript:

But of Salic land no portion of the inheritance shall come to a woman: but the whole inheritance of the land shall come to the male sex.'[11]

Concerning the inheritance of land, Salic Law said

Female inheritance

Salic law regulates succession according to sex. Agnatic succession means succession to the throne or fief going to an agnate of the predecessor; for example, a brother, a son, or nearest male relative through the male line, including collateral agnate branches, for example very distant cousins. Chief forms are agnatic seniority and agnatic primogeniture. The latter, which has been the most usual, means succession going to the eldest son of the monarch; if the monarch had no sons, the throne would pass to the nearest male relative in the male line.

One tenet of the civil law is agnatic succession, the rule excluding females from the inheritance of a throne or fief. Indeed, "Salic law" has often been used simply as a synonym for agnatic succession. But the importance of Salic law extends beyond the rules of inheritance, as it is a direct ancestor of the systems of law in many parts of Europe today.

Agnatic succession

The civil law establishes that an individual person is legally unprotected if he or she does not belong to a family. The rights of family members were defined; for example, the equal division of land among all living male heirs in opposition to primogeniture.

These laws and their interpretations grant insight to Frankish society. The criminal laws established damages to be paid and fines levied in recompense of injuries to persons and damage to goods, e.g., slaves, theft, and unprovoked insults. One-third of the fine paid court costs. Judicial interpretation was by a jury of peers.

Some tenets of the law

*A villein was a form of serf in the feudal system. He was a half-freed farmer; connected to the land of his lord he worked for, but not owned by his lord. In contrast, a serf was fully owned by the lord.

Old Dutch maltho thi afrio lito
Dutch ik meld, jou bevrijd ik, laat
English I declare, you I free villein*

The Salic law code contains the earliest surviving attestations of Old Dutch. They consist mainly of stray words or glosses (Malbergse glossen), but include a full sentence:[10]

The language question

By that time his Holy Roman Empire comprised most of Western Europe. He adds laws of choice taken from the earlier law codes of Germanics not originally part of Frankia. These are numbered into the laws that were there, but they have their own, quasi-sectional, title. All the Franks of Frankia were subject to the same law code, which retained the overall title of Lex Salica. These integrated sections borrowed from other Germanic codes are the Lex Ribuariorum, later Lex Ribuaria, laws adopted from the Ripuarian Franks, who, before Clovis, had been independent. The Lex Alamannorum took laws from the Alamanni, then subject to the Franks. Under the latter, they were governed by Frankish law, not their own. The inclusion of some of their law as part of the Salic Law must have served as a palliative. Charlemagne goes back even earlier to the Lex Suauorum, the ancient code of the Suebi preceding the Alemanni.

Family IV also has two divisions, the first comprising 33 manuscripts; the second, one manuscript. They are characterized by the internal assignment of Latin names to various sections of different provenience. Two of the sections are dated to 768 and 778, but the emendation is believed to be dated to 798, late in the reign of Charlemagne. This edition calls itself the Lex Salica Emendata or the Lex Reformata or the Lex Emendata, and is clearly the result of a law code reform by Charlemagne.[9]

Family III is split into two divisions. The first, comprising three manuscripts, dated to the 8th-9th centuries, presents an expanded text of 99 or 100 titles. The Malberg Glosses are retained. The second, four manuscripts, not only drops the glosses, but "bears traces of attempts to make the language more concise."[9] A statement gives the provenance: "in the 13th year of the reign of our most glorious king of the Franks, Pipin."[9] Some of the internal documents were composed after the reign of Pepin the Short, but it is considered to be an emendation initiated by Pepin, and is therefore termed the Pipina Recensio.

Carolingian phase

[8] Kern's Family II, represented by two manuscripts, is the same as Family I, except it contains "interpolations or numerous additions which point to a later period."[7], "language of the court."malbergo, "Malberg Glosses," marginal glosses stating the native court word for some Latin words. These are named from native Malbergse Glossen In addition they feature the [6] Family I is the oldest, containing four manuscripts dated to the 8th and 9th centuries but containing 65 titles believed to be copies of originals published in the 6th century.[5]

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