Салическое право: Древний кодекс франков

Frankish civil law code

The Salic law ('/s//æ//l//ᵻ//k/ or '/s//eɪ//l//ᵻ//k/; Lex salica), also called the Salian law, was the ancient Frankish civil law code compiled around AD 500 by the first Frankish King, Clovis. The written text is in Latin and contains some of the earliest known instances of Old Dutch. It remained the basis of Frankish law throughout the early Medieval period, and influenced 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 sixth to eighth centuries and three emendations as late as the ninth century have survived. Salic law provided written codification of both civil law, such as the statutes governing inheritance, and criminal law, such as the punishment for murder. Although it was originally intended as the law of the Franks, it has had a formative influence on the tradition of statute law that extended to modern history in much of Europe, especially in the German states and Austria Hungary in Central Europe, the Low Countries in Western Europe, Balkan kingdoms in Southeastern Europe, and parts of Italy and Spain in Southern Europe. Its use of agnatic succession governed the succession of kings in kingdoms such as France and Italy.

The original edition of the code was commissioned by the first king of all the Franks, Clovis I (c. 466–511), and published sometime between 507 and 511. He appointed four commissioners to research customary law that, until the publication of the Salic law, had been 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. To govern more effectively, having a written code was desirable for monarchs and their administrations. 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and was amended as required to add newly enacted laws, revise laws that had been amended, and delete laws that had been repealed. In contrast with 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, which revealed 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.

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. Family I is the oldest, containing four manuscripts dated to the eighth and ninth centuries, but containing 65 titles believed to be copies of originals published in the sixth century. 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". Kern's Family II, represented by two manuscripts, is the same as Family I, except that it contains "interpolations or numerous additions, which point to a later period".

These laws and their interpretations give an insight into Frankish society. The criminal laws established damages to be paid and fines levied in recompense for injuries to persons and damage to goods, 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 contrast to primogeniture.

One tenet of the civil law is agnatic succession, 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 use 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.

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 lifetimes. 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.

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. No prior occasion existed 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 were male, he would succeed to the French throne as king; if female, Philip would maintain the regency until the daughters of Louis X reached their majority. The opportunity remained for either daughter to succeed to the French throne. The unborn child proved to be male, John I, 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 in 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 a 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 in the kingdom of France", formalizing Philip's usurpation and the impossibility for a woman to ascend the throne of France, a principle that remains in force to this day. 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.

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. In 1358 the monk Richard Lescot invoked it to dispute the claim of Charles II of Navarre to the French crown, an argument that would later be echoed by other jurists in defence of the Valois dynasty. 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. The appanages given to the Valois princes, though, 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 to lands considered "Salic" – and debate remains 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. Shakespeare says 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 third wife, Elisabeth of Valois. Philip's agents were instructed to "insinuate cleverly" that the Salic law was a "pure invention". Even if the "Salic law" did not really apply to the throne of France, though, 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 Bourbon kings, further solidified the agnatic principle in France. Although no reference was made to the Salic law, the imperial constitutions of the Bonapartist First French Empire and Second French Empire continued to exclude women from the succession to the throne. In the lands that Napoleon Bonaparte conquered, Salic law was adopted, including the Kingdom of Westphalia, the Kingdom of Holland, and under Napoleonic influence, the House of Bernadotte's Sweden.

Several 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 of 1713, 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, which was an example of an operation of quasi Salic law. In the modern Kingdom of Italy, under the House of Savoy, succession to the throne was regulated by Salic law. The British and the Hanoverian thrones separated after the death of King William IV of the United Kingdom and of Hanover in 1837 because Hanover practiced quasi Salic law, unlike Britain. King William's niece, Victoria, ascended to the British throne, but the Hanover throne went to William's brother Ernest, Duke of Cumberland. Salic law was also an important issue in the Schleswig Holstein Question and played a 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. European nobility would have confronted Salic issues at every turn in the practice of diplomacy, particularly when they negotiated marriages, since 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", though her title may be "Queen". Luxembourg passed to the House of Orange Nassau's distantly related agnates, the House of Nassau Weilburg, but that house also 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 quasi Salic law of succession to allow him to be succeeded by his daughters.

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. 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", implying that 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. In the novel Royal Flash, by George MacDonald Fraser, the hero, Harry 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". 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. 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