SALICA, LAW. — The barbarian laws (v.), almost immune to foreign influences and the oldest among those of the Frankish group, it represents the intermediate legal condition between the age of Tacitus and that of the new Germanic kingdoms, as well as the picture of a still primitive society devoted to hunting and pastoralism, imbued with warlike spirits and largely migratory.
The absence of any reference to Christianity could lead one to believe that it dated from the period 448–81, before Clovis, or from the beginning of his reign, whereas the absence of pagan norms has led it to be regarded as subsequent to the partial conversion of the Franks (496). This hypothesis, however, is uncertain, since it may be admitted that the oldest portion, of which the unquestionably pagan chapter alluding to animal sacrifices has been preserved, fell away in the subsequent redactions; it is therefore safer to assign the original text to the age of Clovis, or to the period immediately following his death and preceding the Pactum pro tenore pacis (508–11). Its formation is no less disputed; its history is rendered less clear by the presence of the two prologues, which, unlike those of the Lombard Edict, are not contemporary with the text but later, and by the epilogues, reproduced in certain
manuscripts together with a recapitulatio legis salicae. Issued as the Pactus Legis Salicae, which has not survived, it attests the intervention of the people and of the proceres gentis: it thus accords with the other Frankish and Suevic 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 gathered royal law into written form. The popular tribunals (malberg), in which the original formalistic norms were applied and therefore the Salic law with its provisions concerning private offences, were thus set against the royal tribunal, to which offences against the army, public morals and the public good were instead referred, and which became a court of equity. Since the functions of the two tribunals remained distinct, the formulation of the popular norms was completed without the intervention of the king, who is mentioned there only when he had to supplement them, for example by excluding the contumacious person from legal rights. Roman influence, received through Burgundian law from the Theodosian Code or from epitomes of the Institutes of Gaius or the Receptae Sententiae of Paul, determined the division into titles and paragraphs, as well as certain typically Roman concepts in the prologues. The purpose of the latter was then to ennoble the Salic law, first of all through the mythical antiquity of a pre-monarchical or already monarchical age of the founding king Pharamond, whose legislators Wisogast, Arogast, Salogast and Widogast, through their names designating the cardinal points, indicate electi de pluribus, representatives of the entire natio salica; then by exalting Clovis, Childebert and Clotaire as authors and revisers of the Salic law; and finally by giving the character of a war of liberation to what had merely been the invasion and destruction of the last Roman province, defended by Aegidius and Syagrius, and by bearing witness to the Catholic primacy of the Salii over all the Germans.
The second prologue, considered more recent, with its exaltation of the geni Francorum inclita, auctore Deo condita... ad catholica fide super conversa et immunis ab herere, recalls the conversion that took place in the sixth century and the Eastern heresies, especially iconoclasm, which certainly had a wide resonance in the West. The Franks are even declared vindicators of the Roman yoke, defenders of the faith and protectors of the bodies of the martyrs whom the Romans supposedly burned or gave to the beasts, with an evident overturning of the history of the fifth century, perhaps by then too distant and forgotten, since it was precisely the Romans who transmitted the cult of the martyrs to the Franks. The conversion, which took place directly from paganism to Catholicism without passing through Arian heresy, is given prominence in the prologue in order to justify the supremacy of the Salii over the other Germans, the conquest of Gaul, support for the Church, and the policy of Clovis, consul and Augustus, independent of Byzantium.
Despite its obscure Latin-Germanic terminology and the symbolic formalities proper to the archaic world, such as the breaking or offering of twigs in order to dissolve or establish a relationship, the Salic law is of great importance because of its extension to the Carolingian Empire and consequently also in Italy, in the counties and among the higher clergy. This explains how the revisions made by Clovis’s successors were supplemented by those of Charlemagne (the l. s. emendata, perhaps of 768), Louis the Pious (a. 819) and Charles II (a. 864). Its diffusion is attested by the Lombard Edict and cartulary, as well as by declarations of law in documents; and even in the eleventh century the countess Matilda of Tuscany, Lombard by origin, declared herself Salic by marriage.
A type of succession to the throne is founded upon the Salic law. This derived from the exclusion of women from succession to landed property established in tit. LIX, 5 de alodis, and subsequently mitigated by chap. 3 of the Capitularium of Chilperic (573–75), which substituted for it a right of preference for male successors of equal degree: a principle of private law that, 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 Salic law, 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 reign 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) concerning Sardinia. Then, against the attempts of Metternich,
who, to the detriment of the Carignano branch, sought to transfer the succession to Duchess Beatrice, wife of Archduke Francis d’Este, in order to extend Austria’s influence to the Savoyard state. In 1814 Napione and Balbo wrote defences of the Salic principle, which prevailed at the Congress of Vienna (1815) in connection with the cession of Genoa and at the Congress of Verona (1822) for the protection of Charles Albert. Not mentioned in the French, Belgian and other constitutions that nevertheless adopted it, it was instead explicitly accepted in the Statute issued by Charles Albert in 1848.