Salic law

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.[8] 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.[9] 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".[10] 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".[11]

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 division, with four manuscripts, not only drops the glosses, but "bears traces of attempts to make the language more concise".[12] A statement gives the provenance: "in the 13th year of the reign of our most glorious king of the Franks, Pipin".[12] 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 comprised 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.[12]

By that time his Holy Roman Empire comprised most of Western Europe. He adds laws of choice (free will) taken from the earlier law codes of Germanic peoples 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 Franks, 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.

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.

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.[14]

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 interpreted by the Salian Franks, the law merely prohibited women from inheriting ancestral "Salic land"; this prohibition did not apply to other property (such as personal property); 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 usage 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 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 the transfer of succession rights 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 such lines are 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 and succession. This has the effect of following the closest extant blood line (at least in the first instance) and not involving any more distant relatives (see, for example: Pragmatic Sanction of 1713 in Austria). The closest female relative might be a child of a relatively junior branch of the whole dynasty, but still inherits due to her position in the male line, thanks to the longevity of her own branch; any existing senior female lines come behind that of the closest female.

From the Middle Ages, there was another system of succession, known as cognatic male primogeniture, which actually fulfills apparent stipulations of the 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 a son of his daughter, when the daughter in question is still alive. Or an uncle, with no children of his own, is succeeded by a son of his sister, when the sister in question is still alive.

Strictly seen, this fulfils 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.

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.

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 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 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 in 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.

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 daughters of Louis X, Philip V and Charles IV, including the possible unborn daughter of the pregnant Queen Jeanne d'Évreux;
• Isabella of France, sister of Louis X, Philip V and Charles IV, wife of King Edward II of England.

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.

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.

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 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, that being an example of an operation of the Semi-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. Hanover practised Semi-Salic law, but not Britain. 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.