Salic Law

SALIC LAW. - The most original of the barbarian laws (v.), almost immune to foreign influences, the oldest among those of the Frankish group, it represents the state of law intermediate between the age of Tacitus and that of the new Germanic kingdoms, and the picture of a still primitive society, devoted to hunting and herding, pervaded by warlike spirits, in large part migratory.

The absence of any reference to Christianity could make it be believed to date back to the period 448-81, prior to Clovis, or to the beginning of his reign, while the absence of pagan norms has led it to be considered later than the partial conversion of the Franks (496). This hypothesis, however, is unreliable, since it may be admitted that the oldest part fell out in the successive redactions, of which the chapter that alludes to animal sacrifices — undoubtedly pagan — has been preserved; therefore the attribution of the original text to the age of Clovis, or to that immediately after his death and prior to the Pactum pro tenore pacis (508-11), remains more certain. No less debated is its formation, whose history is made less clear by the presence of the two prologues, not coeval with the text as in the Lombard Edict but later, and by the epilogues, reported in some codices together with a recapitulatio legis salicae. Issued as Pactus Legis Salicae, which has not come down to us, it attests the intervention of the people and of the proceres gentis: it therefore accords with the other Frankish and Swabian pactus, which mark an agreement between the monarchy and the aristocracy or between the people and the aristocracy, unlike the Burgundian law and later the Lombard law, which committed royal law to writing. The popular courts (malberg) in which the original formalistic norms were applied, and therefore the l. s. with its provisions concerning private crimes, were thus set against the royal court, to which were instead referred crimes against the army, good morals and the public good, and which became a court of equity. While the functions of the two courts remained distinct, the drafting of the popular norms was accomplished without the intervention of the king, who appears cited only when he had to complete them, for example by excluding the contumacious from the law. Roman influence, received through the Burgundian law from the Theodosian Code or from the compendia of Gaius' Institutiones or from Paul's Receptae Sententiae, determined the division into titles and paragraphs and also certain typical Roman concepts of the prologues. The purpose of the latter was then to ennoble the l. s., first of all with the mythical antiquity of a pre-monarchic or already monarchic era of the ancestor King Faramund, whose legislators Wisogast, Arogast, Salogast and Widogast, with the names of the cardinal points, indicate electi de pluribus, the representatives of the entire natio salica; then to exalt as authors and emenders of the l. s. Clovis, Childebert and Chlothar; finally to give the character of a war of liberation to what had been only invasion and destruction of the last Roman province, defended by Aegidius and Syagrius, and to testify to the Catholic primacy of the Salians over all the Germans.

The second prologue, held to be more recent, with its exaltation of the gens Francorum inclita, auctore Deo condita... ad catholica fide super conversa et immunis ab herere recalls the conversion that took place in the 6th century and the Eastern heresies, especially iconoclasm, which certainly had wide resonance in the West. The Franks are even declared avengers of the Roman yoke, defenders of the faith, protectors of the bodies of the martyrs whom the Romans would have burned or given to the beasts, with manifest subversion of the history of the 5th century, perhaps by then too distant and forgotten, since it was precisely by the Romans that the cult of the martyrs was transmitted to the Franks. The conversion, which was effected from paganism to Catholicism without passing through the Arian heresy, finds emphasis in the prologue in order to justify the predominance of the Salians over the other Germans, the conquest of Gaul, the support given to the Church and the policy, independent of Byzantium, of Clovis as consul and Augustus.

Despite the obscure Latin-Germanic terminology and the symbolic formalities proper to the archaic world, such as the breaking or offering of twigs to break or create a kinship, the l. s. is of great importance for its extension to the Carolingian Empire and therefore also in Italy, in the counties and among the higher clergy. This explains how to the revisions made by the successors of Clovis were added those of Charlemagne (l. s. emendata, perhaps of 768), of Louis the Pious (a. 819) and of Charles II (a. 864). Its diffusion is attested by the Lombard Edict and cartulary as well as by the professions of law in documents, and still in the 11th century Countess Matilda of Tuscany, Lombard by origin, declared herself Salic by marriage.

A type of succession to the throne is founded on the l. s. This is derived from the exclusion of women from succession to land established in tit. LIX, 5 de alodis and later mitigated by cap. 3 of the Capitulary of Chilperic (573-75), which substituted for it the right of preference to male successors of equal degree: a principle of private law, which with the evolution of the monarchy from elective to hereditary passed into public law, perhaps influencing Frankish feudal inheritance law. On the basis of the l. s., the exclusion of women from the throne of France was attested by Gilbert of Metz (1434) and by the Savoyard Claude Seyssel (1519), who praised that première specialité of the kingdom of Francis I. The principle was defended in the Treaty of Utrecht (1713), which assigned Sicily to the Dukes of Savoy, and in the Treaty of London (1718) for Sardinia. Then, against the attempts of Metternich, who, to the detriment of the Carignano branch, sought to bring about the succession of Duchess Beatrice, wife of Archduke Francis of Este, in order to extend Austria's influence to the Savoyard State. In 1814 Napione and Balbo wrote defenses of the Salic principle, which prevailed at the Congress of Vienna (1815) for the cession of Genoa and at the Congress of Verona (1822) for the protection of Charles Albert. Not cited in the French, Belgian and other constitutions that nevertheless made it their own, it was instead explicitly accepted in the Statute issued by Charles Albert in 1848.

Fulvio Crosara