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SALIC LAW

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Originally appearing in Volume V24, Page 69 of the 1911 Encyclopedia Britannica.
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SALIC LAW, and OTHER FRANKISH LAWS. The Salic Law is one of those early medieval Frankish laws which, with other early Germanic laws (see GERMANIC LAWS), are known collectively as leges barbarorum. It originated with the Salian Franks, often simply called Salians, the chief of that conglomeration of Germanic peoples known as Franks. The Salic Law has come down to us in numerous MSS. and in divers forms. The most ancient form, represented by Latin MS. No. 4404 in the Bibliotheque Nationale at Paris, consists of 65 chapters. The second form has the same 65 chapters, but contains interpolated provisions which show Christian influence. The third text consists of 99 chapters, and is divided into two groups, ac-cording as the MSS. contain or omit the " Malberg glosses." I The I Some of the MSS. contain words in a barbarian tongue and often preceded by the word " malb." or " Inalberg." These are admitted to be Frankish words, and are known as the Malberg glosses. Opinions differ as to the true import of these glosses; some scholars hold that the Salic Law was originally written in the Frankish vernacular, and that these words are remnants of the ancient text, while others regard them as legal formulae such as would be used either by a plaintiff in introducing a suit, or by the judge to denote the exact composition to be pronounced. It is more probable, however, that these words served the Franks, who were ignorant of Latin, as clues to the general sense of each paragraph of the law.fourth version, as emended by Charlemagne, consists of 70 chapters with the Latinity corrected and without the glosses. Though he added some new provisions, Charlemagne respected the ancient ones, even those which had long fallen into disuse. The last version, published by B. J. Herold at Basel in 1557 (Originum ac Germanicarum antiquitatum libel) from a MS. now lost, is founded on the second recension, but contains additions of considerably later date. The law is a compilation, the various chapters were composed at different periods, and we do not possess the original form of the compilation. Even the most ancient text, that in 65 chapters, contains passages which a comparison with the later texts shows to be interpolations. It is possible that chapter i., De mannire, was taken from a Merovingian capitularyand afterwards placed at the beginning of the Salic Law. This granted, internal evidence would go to show that the first compilation dates back to the time of Clovis, and doubtless to the last years of his reign, after his victory over the Visigoths (507–51 I). Many facts combine to preclude the assignment of an earlier date to the compilation of the law. The Germanic tribes had no need to use the Latin language until they had coalesced with the Gallo-Roman population. The scale of judicial fines is given in the denarius (" which makes so many solidi "), and it is known that the monetary system of the solidus did not appear until the Merovingian period. Even in its earliest form the law contains no trace of paganism—a significant fact when we consider how closely law and religion are related in their origins. As pointed out by H. Brunner in his Deutsche Rechtsgeschichte (i. 438), the Salic Law contains imitations of the Visigothic laws of Euric (466–485). Finally, chapter xlvii. seems to indicate that the Frankish power extended south of the Loire, since it speaks of men dwelling " trans Legerem " being summoned to the mallus (judicial assembly) and being allowed eighty nights for their journey. On the other hand, it is impossible to place the date of compilation later. The Romans are clearly indicated in the law as subjects, but as not yet forming part of the army, which consists solely of the antrustions, i.e. Frankish warriors of the king's bodyguard. As yet the law is not impregnated with the Christian spirit; this absence of both Christian and Pagan elements is due to the fact that many of the Franks were still heathens, although their king had been converted to Christianity. Christian enactments were introduced gradually into the later versions. Finally, we find capitularies of the kings immediately following Clovis being gradually incorporated in the text of the law—e.g. the Pactum pro tenore pacis of Childebert I. and Clotaire I. (511-558), and the Edictum Chilperici (561–584), chapter iii. of which cites and emends the Salic Law. The law as originally compiled underwent modifications of varying importance before it took the form known to us in Latin MS. No. 4404, to which the edict of Childebert I. and Clotaire I. is already appended. The classes of MSS. distinguished above give evidence of further changes, the law being supplemented by other capitularies and sundry extravagantia, prologues and epilogues, which some historians have wrongly assumed to be parts of the main text. Finally, Charlemagne, who took a keen interest in the ancient documents, had the law emended, the operation consisting in eliminating the Malberg glosses, which were no longer intelligible, correcting the Latinity of the ancient text, omitting a certain number of interpolated chapters, and adding others which had obtained general sanction. The Salic Law is a collection of ancient customs put into writing by order of the prince. In the sense that they already existed and came ready-made to the prince's hand, it is legitimate to speak of these customs as a popular law, a Volksrecht; but it was the prince who gave them force of law, emended them, and rejected such of the ancient usages as appeared to him antiquated. The king, moreover, had the right to add provisions to the law; and we find capitularies of Charlemagne and Louis the Pious in the form of additamenta to the Salic Law. From this it will be seen that the Salic Law is not a political law; it is in no way concerned with the succession to the throne of France, and it is absolutely false to suppose that it was the Salic Law that was invoked in 1316 and 1322 .to exclude the daughters of Louis X. and Philip V. from the succession to the throne. The Salic Law is pre-eminently a penal code, which shows the amount of the fines for various offences and crimes, and contains, besides, some civil law enactments, such as the famous chapter on succession to private property (de alode), which declares that daughters cannot inherit land. The text is filled with valuable information on the state of the family and property in the 6th century, and it is astonishing to find Montesquieu describing the Salic Law as the law of a people ignorant of landed property. The code also contains abundant information on the organization of the tribunals (tribunal of the hundred and tribunal of the king) and on procedure. Like all the barbarian laws, the law of the Salian Franks was a personal law; it applied only to the Salian Franks. As the Salians, however, were the victorious race, the law acquired an authority in excess of the other barbarian laws, and in the additions made to the Ripuarian, Lombard, and other allied laws, the Carolingians endeavoured to bring these laws into harmony with the Salic Law. Moreover, many persons, even of foreign race, declared themselves willing to live under the Salic Law. The principle of personality, however, gradually gave way to that of territoriality; and in every district, at least north of the Loire, customs were formed in which were combined in varying proportions Roman law, ecclesiastical law and the various Germanic laws. So late as the loth and r rth centuries we find certain texts invoking the Salic Law, but only in a vague and general way; and it would be rash to conclude from this that the Salic Law was still in force. Of the numerous editions of the Salic Law only the principal ones can be mentioned: J. M. Pardessus, Loi salique (Paris, 1843), 8 texts; G. Waitz, Das alte Recht der salischen Franken (1846), text of the first version; J. F. Behrend, Lex Salica (1873; 2nd ed., Weimar, 1897) ; J. H. Hessels, Lex Salica: the Ten Texts with the Glosses, and the Lex Emendata, with notes on the Frankish words in the Lex Salica by H. Kern (188o), the various texts shown in synoptic tables ; A. Holder, Lex Salica (1879 seq.), reproductions of all the MSS. with all the abbreviations; H. Geffcken, Lex Salica (Leipzig, r898), the text in 65 chapters, with commentary paragraph by paragraph, and appendix of additamenta; and the edition undertaken by Mario Krammer for the Mon. Germ. hist. For further information see the dissertations prefixed to the editions of Pardessus, Waitz and Hessels; Jungbohn Clement, Forschungen fiber das Recht der salischen Franken (Berlin, 1876) ; R. Sohm, Der Process der Lex Salica (Weimar, 1867; French trans. by M. Th6venin) and Die frankische Reichsund Gerichtsverfassung (Weimar, 1876) ; J. J. Thonissen, L'Organisalion judiciaire, le droit penal et la procedure de la loi salique (2nd ed., Brussels and Paris, 1882); P. E. Fahlbeck, La Royaute et la droit royal francs (Lund, 1883) ; Mario Krammer, " Kritische Untersuchungen zur Lex Salica ' in the News Archie, xxx. 263 seq.; H. Brunner, Deutsche Rechtsgeschichte (2nd ed., Leipzig, 1906), i. 427 seq. The Lex Ripuaria was the law of the Ripuarian Franks, who dwelt between the Meuse and the Rhine, and whose centre was Cologne. We have no ancient MSS. of the law of the Ripuarians; the 35 MSS. we possess, as well as those now lost which served as the basis of the old editions, do not go back beyond the time of Charlemagne (end of 8th century and gth century). In all these MSS. the text is identical, but it is a revised text—in other words, we have only a lex emend ata. On analysis, the law of the Ripuarians, which contains 89 chapters, falls into three heterogeneous divisions. Chapters i.-xxxi. consist of a scale of compositions; but, although the fines are calculated, not on the unit of 15 solidi, as in the Salic Law, but on that of 18 solidi, it is clear that this part is already influenced by the Salic Law. Chapters xxxii.-lxiv. are taken directly from the Salic Law; the provisions follow the same arrangement; the unit of the compositions is 15 solidi; but capitularies are interpolated relating to the affranchisement and sale of immovable property. Chapters lxv.-lxxxix. consist of provisions of various kinds, some taken from lost capitularies and from the Salic Law, and others of unknown origin. The compilation apparently goes back to the reign of Dagobert I. (6zg-639), to a time when the power of the mayors of the palace was still feeble, since we read of a mayor being threatened with the death penalty for taking bribes in the course of his judicial duties. It is probable, however, that the first two parts are older than the third. Already in the Ripuarian Law the divergences from the old Germanic law are greater than in the Salic Law. In the Ripuarian Law a certain importance attaches to written deeds; the clergy are protected by a higher wergild—600 solidi for a priest, and goo for a bishop; on the other hand, more space is given to the cojuratores (sworn witnesses); and we note the appearance of the judicial duel, which is not mentioned in the Salic Law. There is an edition of the text of the Ripuarian Law in Mon. Ger. hist. Leges (1883), v. 185 seq. by R. Sohm, who also brought out a separate edition in 1885 for the use of schools. For further information see the prefaces to Sohm's editions; Ernst Mayer, Zur Entstehung der Lex Ribuariorum (Munich, 1886); Julius Ficker, " Die Heimat der Lex Ribuaria " in the Mitteilungen fur osterreichische Geschichtsforschung (supplt., vol. v.); II. Brunner Deutsche Rechtsgeschichte (2nd ed., Leipzig, 1906), i., 442. Lastly, we possess a judicial text in 48 paragraphs, which bears the title of Notitia vel commemoratio de ilia ewe (law), quae se ad Amorem habet. This was in use in the district along the Yssel formerly called Hamalant. The name Hamalant is unquestionably derived from the Frankish tribe of the Chamavi, and the document is often called Lex Francorum Chamavorum. This text, however, is not a law, but rather an abstract of the special usages obtaining in those regions—what the Germans call a Weistum. It was compiled by the itinerant Frankish officials known as the missi Dominici, and the text undoubtedly goes back to the time of Charlemagne, perhaps to the years 802 and 803, when the activity of the missi was at its height. In certain chapters it is possible to discern the questions of the missi and the answers of the inhabitants. There is an edition of this text by R. Sohm in Mon. Germ. hist. Leges, v. 269, and another appended to the same writer's school edition of the Lex Ribuaria. For further information see E. T. Gaupp, Lex Francorum Chamavorum (Breslau, 1855; French trans. in vol. i. of the Revue historique de droll frangais et etranger) ; Fustel de Coulanges, Nouvelles Recherches sur quelques problemes d'histoire (Paris, 1891), pp. 399-414; H. Froidevaux, Recherches sur la lex dicta Francorum Chamavorum (Paris, 1891). (C. PF.)
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