Salic law

Record of a judgement by Childebert III

Salic law (/ˈsælᵻk/ or /ˈseɪlᵻk/; Latin: Lex Salica), or Salian Law, was the ancient Salian Frankish civil law code compiled around 500 CE by the first Frankish King, Clovis. Recorded in Latin and in what may have been the oldest known official usage of Old Dutch, it would remain the basis of Frankish law throughout the early Medieval period, influencing future European legal systems. The best known tenet of the old law is the principle of exclusion of women from inheritance of thrones, fiefs and other property. The Salic laws were arbitrated by a committee appointed and empowered by the King of the Franks. Dozens of manuscripts dating from the 6th to 8th centuries 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-Hungary, Romania, and the Balkans.

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 Francia. 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and was amended as required to add newly enacted laws, revise laws that had been amended, and delete laws that had been repealed.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 Hendrik Kern organizes all of the manuscripts into five families according to similarity and relative chronological sequence, judged by content and dateable material in the text.[5] 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.[6] In addition they feature the Malbergse Glossen, "Malberg Glosses," marginal glosses stating the native court word for some Latin words. These are named from native malbergo, "language of the court."[7] 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."[8]

Carolingian phase

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.

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 provenance. 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]

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 Francia. These are numbered into the laws that were there, but they have their own, quasi-sectional, title. All the Franks of Francia 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.

Old Dutch glosses

See also: Old Dutch

Glosses to the Salic law code (the Malbergse glossen) contain several Old Dutch words and the earliest full sentence in the language:[10]

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

* Old Dutch and Early Modern and earlier versions of English used the original second-person singular Germanic pronoun, that attested in Early Modern English as thou (nominative) / thee (objective) and retained in modern German as du (nominative) / dich (accusative). Modern Dutch and Modern English reflect the substitution of the third-person plural form for both the second-person singular and the second-personal plural forms, first in polite conversation and deferential address and later in all contexts. See T–V distinction.

** A villein was a form of serf in the feudal system; the English word is derived from a Middle French term that evolved from a Latin root. Villeins were half-free farmers, connected to the land of the lord for whom they worked but not owned by that lord. In contrast, a serf was fully owned by the lord.

Some tenets of the law

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.

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.

Agnatic succession

One tenet of the civil law is agnatic succession, the rule specifically and explicitly 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 continental Europe today.

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.

Female inheritance

See also: Terra salica

Concerning the inheritance of land, Salic Law said

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]

or, another transcript:

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.

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).

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.

In its use by Continental 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 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 relatives who are more distant from him than necessary (see, for example: Pragmatic Sanction of 1713 in Austria). Using this 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. If male-preference primogeniture were to be applied instead, the (presumably-eldest) daughter of the last male incumbent (that is, the last male of the dynasty) would inherit only after the extinction of all other senior female lines. If no senior female lines exist (for example, the daughter of a succession of eldest sons), then the Semi-Salic law and male-preference agnatic primogeniture would yield the same woman as heir.

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.

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.

Applications of the succession and inheritance laws

In France

The Merovingian kings divided their realm equally among all living sons, leading to much conflict and fratricide among the rival heirs. The Carolingians did likewise, but they also possessed the imperial dignity, which was indivisible and passed to only one person at a time. Primogeniture, or the preference for the eldest line in the transmission of inheritance, eventually emerged in France, under the Capetian kings. The early Capetians had only one heir, the eldest son, whom they crowned during their lifetime. Instead of an equal portion of the inheritance, the younger sons of the Capetian kings received an appanage, which is a feudal territory under the suzerainty of the king. Feudal law allowed the transmission of fiefs to daughters in default of sons, which was also the case for the early appanages. Whether feudal law also applied to the French throne no one knew, until 1316.

The succession in 1316

For a remarkably long period, from the inception of the Capetian dynasty in 987 until the death of Louis X in 1316, the eldest living son of the King of France succeeded to the throne upon his demise. There was no prior occasion to demonstrate whether or not females were excluded from the succession to the crown. Louis X died without a son, but left his wife pregnant. The king's brother, Philip, Count of Poitiers, became regent. Philip prepared for the contingencies with Odo IV, Duke of Burgundy, maternal uncle of Louis X's daughter and prospective heiress, Joan. If the unborn child was male, he would succeed to the French throne as king; if female, Philip would maintain the regency until the daughters of Louis X reach their majority. There was opportunity for either daughter to succeed to the French throne.

The unborn child proved to be male, John the Posthumous, to the relief of the kingdom. But the infant lived for only a few days. Philip saw his chance and broke the agreement with the Duke of Burgundy by having himself anointed at Reims on January 1317 as Philip V of France. Agnes of France, daughter of Saint Louis, mother of the Duke of Burgundy, and maternal grandmother of the Princess Joan, considered it an usurpation and demanded an assembly of the peers, which Philip V accepted.

An assembly of prelates, lords, the bourgeois of Paris and doctors of the University, known as the Estates-General of 1317, gathered in February. Philip V asked them to write an argument justifying his right to the throne of France. These "general statements" agreed in declaring that "Women do not succeed the kingdom of France", formalizing Philip's usurpation and the impossibility for a woman to ascend the throne of France, a principle in force until the end of the monarchy. The Salic law, at the time, was not yet invoked: the arguments put forward in favor of Philip V relied only on the degree of proximity of Philip V with St. Louis. Philip had the support of the nobility and had the resources for his ambitions.

Philip won over the Duke of Burgundy by giving him his daughter, also named Joan, in marriage, with the counties of Artois and Burgundy as her eventual inheritance. On March 27, 1317, a treaty was signed at Laon between the Duke of Burgundy and Philip V, wherein Joan renounced her right to the throne of France.

The succession in 1328

Philip, too, died without a son, and his brother Charles succeeded him as Charles IV unopposed. Charles, too, died without a son, but also left his wife pregnant. It was another succession crisis, the same as that in 1316: it was necessary both to prepare for a possible regency (and choose a regent) and prepare for a possible succession to the throne. At this point, it had been accepted that women could not claim the crown of France (without any written rule stipulating it yet).

Under the application of the agnatic principle, the following were excluded:

The widow of Charles IV gave birth to a daughter. Isabella of France, sister of Charles IV, claimed the throne for her son, Edward III of England. The French rejected the claim, noting that "Women cannot transmit a right which they do not possess", a corollary to the succession principle in 1316. The regent, Philip of Valois, became Philip VI of France in 1328. Philip became king without serious opposition, until his attempt to confiscate Gascony in 1337 made Edward III press his claim to the French throne.

Emergence of the Salic law

As far as can be ascertained, Salic law was not explicitly mentioned either in 1316 or 1328. It had been forgotten in the feudal era, and the assertion that the French crown can only be transmitted to and through males made it unique and exalted in the eyes of the French. 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 its origin, therefore, the agnatic principle was limited to the succession to the crown of France. Prior to the Valois succession, Capetian kings granted appanages to their younger sons and brothers, which could pass to male and female heirs. But the appanages given to the Valois princes, in imitation of the succession law of the monarchy that gave them, limited their transmission to males. Another Capetian lineage, the Montfort of Brittany, claimed male succession in the Duchy of Brittany. In this they were supported by the King of England, while their rivals who claimed the traditional female succession in Brittany were supported by the King of France. The Montforts eventually won the duchy by warfare, but had to recognize the suzerainty of the King of France.

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 it was somewhat anachronistic — there were no Salic lands, since the Salian monarchy and its lands had originally emerged in what is now the Netherlands.

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.

More than a century later, Philip II of Spain attempted to claim the French crown for his daughter Isabella Clara Eugenia, born of his Valois queen. Philip's agents were instructed to "insinuate cleverly" that the Salic law was a "pure invention". But even if the "Salic law" did not really apply to the throne of France, the very principle of agnatic succession had become a cornerstone of the French royal succession; they had upheld it in the Hundred Years' War with the English, and it had produced their kings for more than two centuries. The eventual recognition of Henry IV, the first of the Bourbons kings, further solidified the agnatic principle in France.

Other European applications

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.

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

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 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.

Literary references

See also

References

Notes

  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. 1 2 3 Kern 1880, p. xvii.
  10. ↑ Willemyns, Roland (2013). Dutch: Biography of a Language. Oxford University Press. p. 41. ISBN 978-0-19-932366-1.
  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.

Bibliography

External links

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