1902 Encyclopedia > Salic Law

Salic Law




SALIC LAW, AND OTHER BARBARIAN LAWS. The (1) Lex Saliea is one of those Teutonic laws of the early Middle Ages which are known as leges barbarorum, among which we also reckon the (2) Lex Ripuariorum or Ribuari-orum, (3) Ewa (Lex) Francorum Chctmavorum, (4) Lex Alamannorum, (5) Lex Bajuvariorum, (6) Lex Frisionum, (7) Lex Angliorum el Werinorum, h.e., Thuringorum, (8) Lex Saxonum, (9) Leges Anglo-Saxonum, (10) Lex Bur-gundionum, (10a) Lex Romania Burgundionum, (11) Lex Wisigothorum, (11a) Breviarium Alarici, (lib) Edictum Theodorici, (12) Leges Langobardorum, and to a certain extent (13) Leges Wallix. All these laws may in general be described as codes of procedure and of rights, which regulated for some indefinite period the internal affairs of the several Teutonic tribes whose names they bear.

(1) The Salic Law originated with the Salian Franks, often simply called Salians, the chief tribe of that con-glomeration of Teutonic peoples known as FRANKS (q.v.). The latter first appear in history about 240 (Vopisc, Vit. Aurel., c. 7), after which date we find them carrying on an almost uninterrupted struggle with the Roman empire, till 486, when they finally established a kingdom of their own in provinces which had previously been considered Roman. The Salian Franks first appear under their specific name in 358, when they had penetrated westwards as far as Toxandria (Texandria, now Tessenderloo, in Limburg, the region to the south and west of the lower Meuse), where they were subdued by the emperor Julian (Ammian., xvii. 8). As regards their previous history nothing is known with certainty, though it seems probable that the Franks who occupied the Batavian island c. 290, and were there conquered in 292 by Constantius Chlorus (Paneg. incerti auth., c. 4), and thence transplanted into Gaul, were the Salian Franks. We find, moreover, such unmistakable evidence of a connexion between the Sigambri and the Salii that the latter are by some regarded as the descendants of the Sigambri whom Tiberius removed in 8 B.C. from their home on the right bank of the Rhine; and it is argued that he did not transform them into the Gugerni, nor place them on the Merwede, a stream and locality near Dordrecht and Zwijndrecht, but transplanted them into the region now called the Veluwe, between the Utrecht Vecht and the Eastern Yssel, where the Romans probably made of them what the Batavi had been for years past—their allies—perhaps on the same condition as the latter, who merely furnished the Romans with men and arms. This accounts for the Sigambrian cohort in the Thracian War in 26 A.D. Some think, however, that the Salians were a separate tribe of the Franks who merely coalesced with the Sigambri (comp. Watterich, Die Ger-manen des Rheins; Waitz, Verfass., ii. 24). In 431 the Frankish (Salic) king Chlodio (Cklojo, Chlogio), said to have been a son (or the father) of Merovech, the founder of the Merovingian dynasty (Greg. Tur., ii. 9), took Cam-brai and advanced his dominion as far as the Somme (Greg., ib.; Sid. Apoll., v. 211 sq.), though still acknow-ledging Roman supremacy. Childerich reigned from 457 to 481, and resided at Tournai, where his grave was dis-covered in 1653. His son Clovis (Chlovis, Chlodovech) in 486 extended his empire to the Seine (Greg. Tur., ii. 43, 27). For an account of him, see vol. ix. pp. 528, 529.

We have very few means of ascertaining when the Salic Law was compiled, and how long it remained in force. Our knowledge of the code is derived—(i.) from ten texts, preserved in a comparatively large number of manuscripts, chiefly written in the 8th and 9th centuries; (ii.) from allusions to a Salic Law in various charters and other documents. But the Latin texts do not contain the original Salic Law. This is clear (a) from the allusions we find in them to a "Lex Sálica" and " Antiqua Lex," which can hardly be anything but references to another and earlier Lex Sálica; (b) from a certain peculiarity and awkwardness in the construction of the Latin, which, though it is so-called Merovingian, and therefore very corrupt, would have been different if the texts were original compilations; (c) from a number of words, found in nearly every paragraph of certain groups of the MSS., and now known as " Malberg glosses," which are evidently the re-mains of a vernacular Salic Law, and appear to have been retained in the Latin versions, in some cases because the translators seemed doubtful as to whether their Latin terms correctly rendered the meaning of the original, in other cases because these words had become legal terms, and indicated a certain fine. We do not know whether the original Frankish law-book was ever reduced to writing, or merely retained in, and handed down to posterity from, the memory of some persons charged with the preservation of the law. All that we know of such an original is con-tained in a couple of prologues (apparently later than the texts themselves) found in certain MSS. of the existing
Latin versions. One of them states that four men " in villis qu« ultra Renum sunt per tres mallos (judicial as-semblies) convenientes, omnes causarum origines sollicite discutiendo tractantes, judicium decreverunt," which must refer to a period before 358, as in that year the Salian Franks had already crossed the Rhine and occupied the Batavian island and Toxandria. Another prologue says that the Salic Law was compiled (dictare) while the Franks were still heathens (therefore before 496), and afterwards emended by Clovis, Childebert, and Chlotar. Nor can it be stated with certainty when the Latin translations which we now possess were made, but it must have been after Clovis had extended his power as far as the Loire (486-507), as in chapter 47 the boundaries of the Frankish empire are stated to be the Carbonaria Silva (in southern Belgium between Tournai and Liege) and the Loire.

3 Some explain Ligeris to be the river Leye, a branch of the Scheldt in which case the compilation would fall between c. 453 and 486.

There exist five Latin recensions, more or less different, (i.) The earliest of the code (handed down in four MSS. with little difference, and very likely compiled shortly after Clovis extended his empire to the Loire) consists of sixty-five chapters (with the Malberg glosses). In the course of the 6th century a considerable number of chapters appear to have been added (under the title of "edicts" or " decrees"), some of which are ascribed to Clovis, and the remainder to his successors before the end of the cen-tury. One of them (chap. 78) may with some certainty be ascribed to Hilperic (c. 574). Some others seem to have originated with Childebert I. and Chlotar I. (whose joint reign lasted from 511 to 558), and are known collectively as "Pactus Childeberti et Chlotharii." From internal evi-dence we may infer that this first version dates from a time when Christianity had not yet become general among the Franks, (ii.) Two MSS. contain a second recension, having the same sixty-five chapters (with the Malberg glosses) as the first, but with numerous interpolations and additions, which point to a later period. Especially may this be said of the paragraph (in chap. 13) which pronounces fines on marriages between near relatives, and which is presumed to have been embodied in the Lex Sálica from an edict of Childebert II. issued in 596. In chapter 55 paragraphs six and seven speak of a " basilica," of a " basilica sancti-ficata," and of a "basilica ubi requiescunt reliquiae," but it is more than doubtful whether we have here any evidences of Christianity, though a later recension (the fourth) altered "basilica" into "ecclesia," the "reliquia?" into " reliquiae sanctorum," and thereby gave a decidedly Chris-tian aspect to the clause, (iii.) A third recension is con-tained in a group of nine MSS. (divided into two classes), three of which have the same text (with the Malberg glosses) as the MSS. of the first and second recensions, divided, however, systematically into ninety-nine chapters, while the other six MSS. have the same ninety-nine chapters, with very little difference, but without the Mal-berg glosses. This text seems to have been arranged in Pippin's or Charlemagne's reign (c. 765-779). The clause on marriages between near relatives mentioned above is not found in this recension. On the other hand, we find in chapter 55 ( = 77) fines pronounced on the murder of a presbyter and deacon (no bishop yet mentioned), while the six MSS. of the second class do not contain chapter 99 ("De Chrenecruda"), but merely say that the symbolism described in that chapter had been observed in heathen times, and was to be no longer in force, (iv.) The fourth version (handed down in a great number of MSS., and embodying in seventy chapters substantially the whole of the previous versions) is usually called Lex Sálica Emen-data, as the text bears traces of having been emended (by Charlemagne), which operation seems to have consisted in eliminating the Malberg glosses from the text, correcting the Latin, omitting a certain number of paragraphs, and inserting some new ones. In chapter 55 the bishop is mentioned with the presbyter and the deacon, (v.) Finally, we have a fifth text, which seems an amalgamation of the previous recensions, more especially of the second, third, and fourth, but here and there with considerable differences. It was published in 1557, at Basel, by Bas. Joh. Herold (Originum ac Germanicarum Antiquitatum Libri); but no trace of the Fulda and other MSS. which the editor says that he used has hitherto been found.

The Salic code consists of enactments regarding procedure in lawsuits (chaps. 1, 18, 26, 37, 46-53, 56, 57, 60), judicial fines and penalties for various kinds of theft and kidnapping (2-8, 10-12, 21-23, 27, 28, 33-35, 38-40, 55, 61), for offences, injuries, &c, to per-sons, animals, and property (9, 15-17, 19, 20, 24, 25, 29-32, 36, 41-43, 64, 65); it regulates the " wergeld" (a word found only in the text published by Herold; all the other texts have leoclis, leudis=people, associate of the people) of all classes of persons living under the Salic Law (41-43, 54, 63), the share of the kindred in the composition for homicide (58-62), the devolution of property and inheritance (59), migration from one village to another (45), &c.
The Salic Law speaks of—(a) freeborn persons (ingenuus Francus, Salicus Francus), with a wergeld of 200 solidi, which was tripled when such a person served in the army, and the latter amount again tripled when the person killed was an officer of the king ; (b) serfs (leti or liti), who enjoyed personal freedom though belonging to some master, and (c) pueri regis (probably serfs in the service of the king), both with a wergeld of 100 solidi ; (d) the Roman popu-lation, not yet placed on the same footing with the Francus (pos-sessores with a wergeld of 100 solidi; tributarii, perhaps=coloni, with a wergeld of 62J solidi); (e) slaves (servi), with a wergeld of 30 solidi ; and a variety of other persons belonging to one or other of these classes (puer crinitus, class a ; porcdrius, faber ferrarius, aurifex, &c, class e). An aristocracy is not mentioned. The people lived together in villages (chap. 45); they exercised agri-culture and reared cattle (2-5, 27, &c.) ; they hunted and fished (6, 33); vineyards and gardens were known to them (27, 6, &c.) ; and gold work and iron work are mentioned (10). The chief of the state was a king; his officers included the graflo, who was chief of a pagus (shire) ; sacebaro, chief of a hundred (both with a wergeld of 600 solidi; the latter could also be a puer regis, in which case he had a wergeld of 300 solidi); thunginus or centcn-arius, chief of a hundred, but probably elected by the people from among themselves, as his wergeld seems to have been the ordinary one. The judicial assembly was called mallus, the place where it as-sembled malloberg, the party in a suit gamallus, the councillor of the assembly rachineburgus, an officer who had to advise upon the sen-tence to be pronounced, and to value the property in question.

First recension.
De terra vero nulla in muli-3re [portioautj liereditas non pertinebit, sed ad virilem sex-un qui fratres fuerint tota terra perti-neat.
Third recension.
De terra vero Salica nulla in muliere heredi-tatis transeat poreio, sed ad virilis sexus tota terra 1 proprietatis suse possede-ant.
Pourth recension.
De térra vero Sálica nulla portio liereditatis mulieri veniat sed ad virilem sexum tota teme here-ditas per-venia t.
Second recension.
De terra vero Salica in muliere nulla per-tinet portio, sed qui fratres fuerint, et ad virile sexu tota terra per-tineat.

The famous clause in the Salic Law by which, it is commonly said, women are precluded from succession to the throne, and which alone has become known in course of time as the Salic Law, is the fifth paragraph of chapter 59 (with the rubric "De Alodis"), in which the succession to private property is regulated. The chapter opens with four (five) paragraphs in which it is enacted that—(1) if a man died without male issue, his mother (so in first recension; the second to fifth have "pater aut mater") would succeed to the inheritance (in hereditatem succedat); (2) failing her (the father and mother), his brother (brothers) or sister (sisters); (3) failing these, the sister of the mother; (4) when there was no sister of the mother, the sisters (sister) of the father; and (5), failing these, the nearest relative. After this the fifth paragraph reads as follows :—

Fifth recension.
De terra vero Sálica, in mulie-rem nulla portio haereditatis transit, sed hoc virilis sexus acquirit, hoc est, filii in ipsa hœreditate succedunt. Sed ubi inter nepotes aut pro nepotes post longum tem-pus de alode ter-ra? eontentio sus-citatur, non per stirpes sed per ca-pita dividan tur.





It seems clear that the first four paragraphs of the chapter, which admit women to a share in the inheritance, refer to private, movable property, and that, by the fifth paragraph, the inheritance of land was exclusively confined to males. We know that this exclusion of women from landed property was hardly a rule anywhere in the Frankish empire, and certainly not in the 6th century, but it obtained more or less afterwards, especially during the feudal period, when all the owners of landed property (i.e., the tenants of fiefs) were liable to military service. We do not know when this exclusion of women from landed property began first to be applied and extended to an exclusion from the succession of thrones, as we do not read of such a notion until the middle of the 14th century during the controversy between Edward III. and Philip of Valois, when it was alleged to be derived from the Salic Law. It will be observed that the word Salica is not found in the oldest existing recension, but appears first in the second text, which some would ascribe to the end of the 6th century. Nor is the word found in the corresponding paragraph (56,4) of the Lex Bipuaria, which was based on the Salic Law. This addition (retained in all the other recensions, also in the so-called Lex Emen-data) was no doubt made for some purpose, but we do not know whether it was made by a scribe, nor what parti-cular notion it was intended to convey, nor whether it was this special word which gave rise to the idea of women being precluded from the succession of thrones.

The various texts of the Lex Salica, arranged in parallel columns, with a commentary on the Malberg glosses, were published in 1880, under the title Lex Salica: the Ten Texts with the Glosses, and tlie Lex Emendata, ed. J. H. Hessels, with notes on the Frankish words in the Lex Salica by H. Kern, 4to, London, 1880 ; comp. also Geo. Waitz, Das alte Ilecht der salischen Franken, 8vo, Kiel, 1846 ; Rud. Sohm, Die frank. Reichs- und Gerichts -Verfassung, 8vo, Weimar, 1871; Pardessus, Loi Salique, 4to, Paris, 1843.

Having treated of the Salic Law somewhat minutely, we need only say a few words about each of the other leges barbarorum, as they all present somewhat similar features, and hardly differ except in the time of their compilation, the amount of fines, the number and nature of the crimes, the number, rank, duties, and titles of the officers, &c.

(2) The Ripuarian Law, or Law of the Ripuarian Franks (Lex Bipuaria or Riboaria, L. Ripuariorum or Ribuariorum, L. Ripu-ariensis or Ribuariensis), or inhabitants of the river-banks, was in force among the East or Rhenish Franks in the Provincia Ribuaria, also called Ducatus or Pagus Ribuarius (see vol. ix. p. 723), of which Cologne was the chief town. It has much in common with the Salic Law; in fact, chapters 32-64 are, with the exception of some necessary modifications and additions, merely a repetition of the corresponding chapters of the Salic Law, and even follow the same arrangement, so that this part of the code is hardly anything but the Salic Law revised by order of the kings of Austrasia. Professor Sohm (whose edition, published in 1883 in Mon. Germ. Hist., Legg., vol. v. part 2, is based on nearly forty MSS., written between the 8th and the 11th century) divides the eighty-nine chapters of this code into four distinct portions, ascrib-ing the first portion (chaps. 1-31), which contains enactments not met with in the Salic Law, to the first part of the 6th century, the second (chaps. 32-64) to the second part of the same century (c. 575), the third (chaps. 65-79) to the 7th century, and the fourth (chaps. 80-89) to the beginning of the 8th century. This result practically agrees with the statements found in a prologue in certain MSS. (which contain some of the barbarian codes), where it is said that the "Leges Francorum ( = Lex Ripuariorum), Alamannorum, et Bajuvariorum " were compiled at Chalons-sur-Marne at the dictation of Thierry I. (511-534), by wise men learned in the law of his kingdom, and that the codes were afterwards revised and amended by Childebert I., Chlotar I., and Dagobert. Charlemagne promul-gated some additional chapters to the Ripuarian Law in 803 (Mon. Germ. Hist., Legg., i. 117). We may here observe that the Salie and Ripuarian Laws were to some extent introduced into England by the Norman Conquest, as appears from the Laws of Henry I., where we find enactments "secundum Legem Salicam " and " secun-dum Legem Ripnariam" ; comp. Leg. Hen. I., capp. 87, §§ 9, 10, 11 (word for word = L. Sal., tit. 43), 89, 90 § 4 ( = L. Rip., 70), and 83 § 5 ( = L. Sal., tit. 55 § 4).

(3) With the Ripuarian Law the Lex Francorum Chamavorum is intimately connected. The two MSS. in which it is preserved call it '' Notitia vel commemoratio de ilia ewa (law) quae se ad Amorem habet." Amor is the district called Hamarlant, Hamalant, Ham-melant, Hamuland, in the 9th century. This name was derived from the Chamavi, a German state mentioned by Tacitus (Ann., xiii. 55 ; Germ., c. 33, 34), which afterwards constituted a part of the Frankish empire. In the 9th century Hamalant was a part of the Pagus Ribuariorum. The whole code consists of only forty-eight short paragraphs, which are apparently nothing but state-ments made in answer to the '' missi dominici" whom Charlemagne despatched to the various nations of his empire to inquire into their condition and to codify their respective laws. It may therefore be ascribed to the beginning of the 9th century (802 or 803). Professor Sohm has published it as an appendix to the Lex Ripuaria \Mon. Germ. Hist., Legg., vol. v. part 2, p. 269).

(4) The Lex Alamannorum was (according to the prologue mentioned above) first compiled by the East-Frankish king Thierry (511-534), and afterwards improved and renewed by Chfidebert I. (511-558), Chlotar I. (558), and Dagobert I. (622-638). Although not much reliance can be placed on this statement, the researches of Professor Merkel, who edited the code from forty-eight MSS. (Mem. Germ. Hist., Legg., vol. iii.), show that some kind of code called Pactus (of which he published three fragments) was com-piled for the Alamanni in the reign of Chlotar I. (537-561). Under Chlotar II. (613-622) a more complete code, consisting of seventy-five chapters, was compiled, which was revised under Dagobert (628) and augmented with chapters 76-97 ; it was again altered and augmented under the Alamannie duke Landfrid (d. 730), whose work Merkel calls Lex Alamannorum Lantfriclana, and finally aug-mented in the Carolingian period (hence called Lex Alamannorum Karolina sive reformata), perhaps early in the 9th century. The «ode consists of 97 (in some MSS. 98, 99, 105, and 107) chapters.

(5) The Lex Bajuvariorum, or Pactus Bawarorum, had the same origin as the Lex Alamannorum, if we accept the somewhat unreliable statement of the prologue spoken of above. It seems probable that some kind of code was compiled for the Bavarians during the reigns of Clovis's sons. Those paragraphs which treat of ecclesiastical affairs and the position of the Bavarian dukes to-wards the Frankish kings (tit. ii. chap. xx. § 3) have clearly been inserted in Dagobert's time, if not later. There is a great similarity between certain provisions of the Bavarian and the Alamannie codes, and also some paragraphs of the former have been derived from the earliest recension of the Lex Wisigothorum. Some addi-tions were made by Duke Thassilo II. (763-775), some by Charle-magne (803), some by King Louis (c. 906), and, finally, some by Duke Henry II. (end of 10th century). The emperor Henry III. is alleged to have granted the law of the Bavarians to the Hunga-rians in 1044. It consists of twenty-one chapters, each containing several paragraphs. Professor Merkel distinguishes three different recensions of the code and various additions, which he edited in 1863 from thirty-five MSS. for the Man. Germ. Hist., Legg., iii. p. 183 sq.

(6) For the Lex Frisionum, see vol. ix. p. 789.

(7) The Lex Angliorum et Werinorum, hoc est, Thuringorum, con- sists of seventeen chapters. Early editions of this code contained some legal decisions identical with those of Judge Wlemarus in the appendix to the Lex Frisionum (L. Angl. Jud. Wlem., 1, 2, 6, 7 = L. Fris., 22, §§ 54, 55, 86 ; Addit, i. 18), from which circum- stance it was inferred that the compilation, or at least the revision, of both codes took place at one and the same time (802-803). But Richthofen, who edited the work in Mon. Germ. Hist. (Legg., v. p. 103), and who rejects these legal decisions of Wlemarus as not belonging to this code at all, is of opinion (p. 115) that the code was not written even at the end of the 9th century. Opinions have differed also as to the region where the law originated. Some ascribe it to the Angli and Werini, who inhabited the Holstein and Schleswig regions ; others attribute) it to Thuringia proper ; and in more recent times it has been ascribed to Thuringia on the left bank of the Rhine (= South Holland, Brabant, &c.). It was also argued that the code must have originated in a region where Frisian and Frankish elements had become mixed, both in language and in law, and where the Frankish preponderated. That the code originated in South Holland was inferred from its agreement in some respects with the Lex Chamavorum, which originated in the region of the lower Rhine and the Yssel. And the law may have come to be in force among the allied tribes on the Elbe in northern Thuringia, even though it originated in South Holland. If it originated in Thuringia, it must have been transplanted to the Holstein and Schleswig regions ; and it was used by the Danes, as is clear from Canute bringing it over to England when he con- quered the country in 1013. But in England the code was simply called " Lex Werinorum, h.e., Thuringorum," but no longer "Anglorum," as the Danes called the whole Anglo-Saxon popula- tion which they had conquered "Angli," and the law which they found in force " Lex Anglorum " (Legg. Edw. Conf., c. 30). Hence it has been concluded that what was called in England Lex Danorum is nothing but the Lex Werinorum. When the Normans conquered England in 1066 they soon recognized that this Lex Danorum and the Law of the Norwegians (Lex NoricorUm or Norwegensium), who had migrated to England in earlier times, were practically one and the same. Hence William I., declaring that the population which he had brought over with him from Normandy were also originally Norwegians, resolved to abrogate the Anglo-Saxon laws and to leave only that of the Danes in force (Legg. Edw. Conf, c. 30),—a plan which only the most persevering entreaties of the Anglo-Saxon barons could induce him to abandon. The latest edition of this code (1875) is by K. F. von Richthofen, who is decidedly against the South Holland origin of the law.

(8) The Lex Saxonum consists of nineteen chapters or sixty-six articles or paragraphs, and appears to be composed of three essential parts, the oldest of which (arts. 1-23) seems to have existed before the later additions known as the Capitulare Paderbornense (de partibus Saxonise) of 785 (or 777) and the Capitulare Saxonicum of 797 (in which a "Lex Saxonum" and "Ewa Saxonum" are referred to ; comp. chaps. 33 and 7, 8, 10); the second part (arts. 24-60) must have been compiled after that date ; and the third (arts. 61-66) was probably added in 798, when Charlemagne had removed a part of the Saxon nobility as hostages from their own country ; while the whole was united into one code at the diet of Aix-la-Chapelle in 802-803 (Merkel, Lex Saxonum, Berlin, 1853). The enactments of this code are far more severe than those of any other of the barbarian laws, and it often inflicts capital punish-ment for crimes which the other laws punish with mere pecuniary fines, as, for instance, theft and incendiarism. This rigour Charle-magne softened by reserving to himself the right of asylum and pardon, but it was expressly retained and granted anew by Conrad II. (1024-1039). The code was edited in 1875 by Von Richthofen in Mon. Germ. Hist., Legg., v. p. 1 sq.





(9) The Leges Anglo-Saxonum are for a great part written in Anglo-Saxon, and as such may be reckoned among the most ancient monuments of the Teutonic language. They appeared mostly in the form of constitutions promulgated by the various kings (some-what like the Frankish capitularies), with the co-operation of an assembly of leading men ("sapientes," Beda, H. E., ii. 5), and fre-quently also of the clergy (concilium, synodus). They may be divided into two classes,—secular and ecclesiastical laws. Some-times they are mere judicial sentences (d6m) or treaties of peace (frid). The earliest laws we have are those of iEthelbert, king of Kent (c. 561); then follow those of Hloíhaer (c. 678) and Eádric (c. 685), Wihtraed (c. 691), Ine (after 688), Alfred (after 871), Eadward (after 901), ^Ethelstan (after 924), Eadmund (after 941), Edgar (after 959), jEthelred II. (after 978), the Danish Canute (after 1017), William the Conqueror (after 1066). Then follow two collections of laws, the so-called " Leges Edwardi Confessoris " and "Leges Henrici I.," which, drawing from the Anglo-Saxon Law, represent the modifications which had been made in the earliest laws during the Norman period, and the introduction of new elements derived from the Salic and Ripuarian Laws. Besides these there are a good many canons and other ecclesiastical ordi-nances enacted under the archbishops Theodore and Ecgbert and King Edgar, &e. ; comp. ENGLAND, vol. viii. pp. 285, 303. There is an edition of these laws by B. Thorpe (fob, London, 1840), another by Dr Reinh. Schmid (Die Gesetze der Angel- Sachsen, 2d ed., 8vo, Leipsic, 1858).

(10) The compilation of the Lex Burgundionum is usually as- cribed to Gundobald (d. 516), whence it is also called Lex Gundo- oada (corrupted Gombata, Fr. Loi Gombette). It consists, according to its first prologue, of a collection of constitutions enacted partly by the earlier kings of Burgundy, partly by Gundobald, and revised by a general Burgundian diet. This agrees with the statements contained in its second prologue, which itself may be regarded as an independent constitution or edict to the counts and judges re- garding the introduction of the law. In the rubric which it bears in the MSS. it is said that it was promulgated at Lyons on 29th March in the second year of Gundobald (some MSS. read Sigis- mund). As the year of Gundobald's accession is supposed to be 465, the promulgation must have taken place in 467, or, if we assume that the year is meant in which Gundobald became sole king of Burgundy (478), the date of the law would be 480, while it would be 517 if we adopt the reading "Sigismund" of some of the MSS. But as the law in its present state contains decrees both of Gundobald and of Sigismund we can only regard the whole as a compilation effected by the latter. In early editions the law was divided into eighty-nine chapters, with two additamenta, the first of which (consisting of twenty chapters) was ascribed to Sigismund, the second (of thirteen chapters) to his brother and successor, the last king of the Burgundians, Godomar. But Professor Bluhme (who published the law in 1863, in Mon. Germ. Hist., Legg., iii. 497) places chap. i. (De causis itineribus et aliis servitutibus) and chap. xix. (De liberali causa) of the first additamentum as chaps. xvii. and xliv. in "Papianus" ; chap. xx. as chap. evi. (extrava-gant) and its remaining chapters as chapters lxxxix. to cv. The second additamentum is placed as chap. cvii., the old chap, lxxxix. as chap, eviii., and a new chapter cix. (a decree of Sigismund " De collectis" of 516) added. It was Gnndobald's intention that his law should decide all cases between Burgundians and between them and Romans ; in all other cases the latter would only use Roman law (comp. second preface), of which the Lex Burgundionum con-tains many traces, and even the Burgundians were allowed to use Roman law (comp. L. Burg., titt. 43, 60, 55 § 2). The Latinity of the Burgundian Law is purer than that of all the preceding bar-barian codes, and we find in it a distinct tendency to treat Romans with greater leniency and to make them equal to the Burgundians in the eye of the law. Through Gundobald's political relations with Alaric II., the Lex Burgundionum influenced the West-Gothic legislation, of which traces are found in the Lex Wisigothorum and the interpretatio to Alaric's Breviarium. Charlemagne promul-gated in 813 a Capitulare Aquisgranum (Hon., Legg., i. 817) re-garding the Lex Burgundionum, though the text was not altered. Agobart, bishop of Lyons, complained to Louis the Pious respecting certain abuses caused by the Burgundian Law (Bouquet, vi. 356), but no remedy was effected. On the other hand, towards the end of the 9th century the law had gradually fallen into disuse like all the other barbarian laws, though it is said that the emperor Conrad II. revived and confirmed it. See, besides Professor Bluhme's edition, Hube, Hist, de la formation de. la loi Bourguignonne, Paris, 1867.


(10a) In the second preface to the Lex Burgundionum (published in 502) the Roman subjects of the Burgundian king were promised a codification of their own laws. This work appears to have been promptly executed and was published under the title Lex Romana Burgundionum, perhaps before the compilation of the Breviarium Alarici (506). This collection is also known as Papianus, of which name (found already in MSS. of the 9th century) no satisfactory explanation has hitherto been offered, some, perhaps wrongly, supposing that it is a corruption of the name of Papinianus, the Roman jurist. It was published by Professor Bluhme as an appendix to the Lex Burgundionum (Mon. Germ. Hist., Legg., iii. p. 579).

(11) As regards the Lex Wisigothorum (also called Forum Judi-cum, Judicum Liber, Forum Judieiale, &e.), we know with certainty from Isidore of Seville (Hist. Goth. Hisp., 504) that Euric (466-483) was the first Gothic king who gave written laws to the West Goths. It would therefore be erroneous to ascribe (with Mariana, Hist, de España, v. 6) their first written laws to Euric's son, Alaric II., though it seems probable that the latter, by adding his own laws to those of his father, was really the first author of a West-Gothic codification. Isidore refers to the collection of laws (as it had been preserved up to the end of the 5th and the beginning of the 6th century) as the Laws of Euric, though we must assume that the statutes of the kings who succeeded Euric had already been added to his collection. Isidore also tells us (Hist. Goth. Hisp., 606-624) that Leovigild (d. 586) revised Euric's Laws. As Isidore was bishop of Seville from 599 to 636, and may therefore be said to have been a contemporary of Leovigild, his testimony may be accepted as conclusive, though a much later but untrustworthy tradition would have it that the revision was executed by Leovi-gild's son, Reccared I. (the first Catholic king of the Goths), who died in 601, whereby the whole population of Spain was equalized in point of law. According to Spanish traditions of the 12th century, the West-Gothic collection of laws was again revised, under Sisenand, by the fourth council of Toledo (633), a revision on which Isidore seems to have exercised some influence. It is un-certain, however, whether the code was then systematically arranged and divided into twelve books, as we now have it, or whether this was done under Chindaswinth (d. 652) or under his son Receswinth (d. 672). The several books of the code are divided (in imitation of the codes of Theodosius and Justinianus) into tituli, and those again into chapters or constitutions. From Leovigild down to Egica (d. 701) and his son and coregent Witiza (d. c. 701, the last king of the Goths before the invasion of the Moors) every constitution bears the name of the king who promulgated it, while those dating from before Leovigild have the word "antiqua" prefixed to them instead of the name of a king. This designation is said to have been commenced by Erwig (680-687), who thereby wished to prevent the clergy from claiming the code as their work. Of the texts which existed before the fourth council of Toledo only one small fragment has come down to us, in a palimpsest preserved in the Paris National Library (No. 1278). Some regard this as the remainder of the supposed recension of Reccared I. ; others regard it as a fragment of the Laws of Euric, though it could in no case be the Laws of Euric themselves, but at most their codification by Alaric II. The fragment was known to the Benedictines (Nouv. Traite de Diplom., i. 483, iii. 52, 152, note 1), and was published in 1847 by Professor Bluhme (Die Westgoth. Antiqua oder das Gesetzbuch Reccared's I., Halle). The text is undoubtedly older than those enactments which we find designated as " antiqua," so that it could hardly be placed later than the commencement of the 6th century, i.e., shortly after the compilation of the Breviarium Alarici (506). Hence the text called "antiqua" may be regarded as a modification of that of the Paris palimpsest, and was probably not made before the end of the 6th or the beginning of the 7ti century. Roman law, which is so conspicuous in the later text, may already be traced in that of the palimpsest (taken from the Breviarium Alarici), and also in the "antiqua" constitutions, in which we find even traces of Justinian's law. The Lex Wisi-gothorum (the first code in which Roman law and Teutonic law were systematically combined) was no doubt regarded, after Leovigild and Reccared I., as a code for the Goths as well as for the Romans, without abolishing the Breviarium among the Romans. But King Chindaswinth ordained that the Lex Wisigothorum should be the sole code for both nations, prohibiting at the same time the use of the Roman law, thereby materially promoting the amalgamation of the two nations. It remained in force in Spain throughout the Middle Ages, and was translated into Spanish (Castilian) under Ferdinand III. (1229-1234, or 1241) under the title Fuero Juzgo, or Fuero de Cordova. Editions : (1) Fuero Judsgo en Latin e Castellano cotejado con los mas antiguos y preciosos Codices por la Meal Acadernia Espaiiola, Madrid, 1815, fol.; (2) in Portugalim Monumenta Historica, vol. i., Lisbon, 1856, fol.

(11a) Here also we may mention a Lex Romana compiled for the Roman population, just as in Burgundy. It is also known as Liber Legum, Liber Legum Romanorum, and as Lex Theodosii or Corpus Theodosianum. It received the latter name because the Codex Theodosianus served as its basis. It includes also excerpts from novelise of Theodosius, Valentinian, Marcian, Majorian, Severus, and from the Institutiones of Gains, the Sentential of Paulus, the Codices Gregorianus and Hermogenianus, &c. In a MS. of the 10th century it is called Breviarium, and the title Breviarium Alarici or Alaricianum has become general since the 16th century. The com-pilers of the Breviarium are not known, but it was published in the twenty-second year of Alaric II., i.e., on 5th February 506, at Aire (Atures) in Gascony. It was also used in other western pro-vinces of the Roman empire, and was imitated, excerpted, and altered in other places. One recension, probably dating from the 9th century, is known (from the place where the MS. was found) as the Lex Romana Utinensis. The best edition is that of G. Haenel, Lex Romana Wisigothorum, Berlin, 1847.

(11b) We have also a code for the Eastern Goths compiled by command of Theodoric after 506, but before 526, and known as Edidum Theodorici. It consists of 155 chapters (with a few additions), which are in reality an epitome of Roman law. It was published in 1875, in Mon. Germ. Hist., Legg., v. p. 145 sq., ed. by Professor Bluhme.

(12) Leges Langobardorum.—The first trace of Lombardic law is. an edict of Rothar, consisting of 388 chapters, and promulgated at a diet held at Pavia on 22d November 643. This was followed by laws of Grimoald (668), nine chapters; Liutprand (713-735), six books ; Ratchis (746), nine chapters ; Aistulphus (c. 755), fourteen chapters. Additions were also made by Charlemagne and his successors down to Lothair II. In the manuscripts the texts are arranged, some in a chronological, some in a systematical order. The latter arrangement is already found in a MS. of the 9th century. The systematic collection, which was used chiefly in Bologna a* lectures and for quotations and was known as Lombarda (Liber Langobardse s. Lombardse), appears to have been made in the 11th century. The text as it exists at present is very corrupt, as a number of glosses (some of great antiquity) and formulas, added in the first instance by those who had to use the code to explain certain enactments of the law, afterwards found their way into the text. Towards the end of the 12th and down to the beginning of the 16th century various" glosses and commentaries on the Lom- bardse made their appearance. The first commentaries were those of Ariprand and of Albertus (second half of 12th century). The later commentators (Carolus de Tocco, c. 1200 ; Andreas of Barulo, c. 1230 ; Blasius de Morcone of Naples, before 1338 ; Boherius and Johannes Nenna of Bari, c. 1540) refer frequently to Roman law. Of the Edictum Rotharis a Greek translation was made, of which only fragments have been preserved (comp. C. E. Zacharia, Frag- menta versionis Grmcse Legum Rotharis, Langob. regis, ex. cod. Paris. Gra;c., No. 1348, Heidelberg, 1835).

Editions : (1) C. Baudus a Vesme, Edieta regum Langobardorum, Turin, 1855, reprinted by J. F. Neigebanr, Munich, 1855, 1856; (2) Mon. Germ. Hist., Legg., iv. (1868), by Friedr. Bluhme and Alfr. Boretius; (3) Fr. Bluhme, Edietus ceter&que Langobardorum leges, Hanover, 1870; comp. Merkel, Geschichte des Lombardenrechts, Berlin, 1850.

(13) The Leges Wallise do not belong to the Teutonic family of codes ; but it is not out of place to mention them here. There is, comparatively speaking, no great distance of time between the leges barbarorum and the Laws of Wales, while the contents of the latter show a similar, nay almost the same, idea of law as the former ; and, apart from the fact that Wales became permanently connected at the end of the 13th century with a Teutonic people, the Anglo-Saxons, it has been noticed that in Wales Roman and Germanic, but no traces of a specific Welsh, law are found. King Howel Dda (i.e., the Good), who died in 948, is the originator of the Welsh code. In the preface it is stated that Howol, "seeing the laws and customs of the country violated with impunity, summoned the archbishop of Menevia, other bishops and the chief of the clergy, the nobles of Wales, and six persons (four laymen and two clerks) from each comot, to meet at a place called Y Ty Gwyn ar Dav, or the white house on the river Tav, repaired thither in person, selected from the whole assembly twelve of the most experienced persons, added to their number a clerk or doctor of laws, named Bllgywryd, and to these thirteen confided the task of examining, retaining, expounding, and abrogating. Their compilation was, when completed, read to the assembly, and, after having been con-firmed, proclaimed. Howel caused three copies of them to be written, one of whioii was to accompany the court for daily use, another was deposited in the court at Aberfraw, and a third at Dinevwr. The bishops denounced sentence of excommunication against all transgressors, and soon after Howel himself went to Rome attended by the archbishop of St David's, the bishops of Bangor and St Asaph, and thirteen other personages. The laws were recited before the pope and confirmed by his authority, upon which Howel and his companions returned home." All this could not have been effected before Howel had subjected Wales to his own rule, therefore not before 913. We have three different recensions of the code, one for Venedotia or North Wales, another for Dimetia or South Wales, a third for Gwent or North-East Wales. We do not know how far these recensions were uniform in the beginning ; but a variance must have occurred shortly after, for the manuscripts in which the codes are preserved differ greatly from each other. The code was originally compiled in Welsh, but we have no older MSS. than the 12th century, and even the earliest ones (especially those of the Yenedotia recension) contain many interpolations. The Latin translations of the code would seem to be very old, though even here we have no earlier MSS. (belonging to the Dimetia recension) than the 13th century. The Latin text is much shorter than the Welsh, but we do not know whether this abridgment was made on purpose, or whether the translation is an imitation of an earlier text. The texts present only a few traces of Roman law, which, however, are evidently additions of a later period. The whole body of Welsh laws was published in one volume by An. Owen under the direction of the commissioners on the public records (fol., London, 1841).

For further information on the barbarian codes, see Heinr. Zoepfl, Deutsche Rechtsgeschichte, Svo, Brunswick, I860, vol. i. p. 8 sq., whose clear and able treatment of the subject has been taken as the basis of paragraphs 4-13 above ; comp. also Stobbe, Geschiehte der deutschen Rechtsquellen, Svo, Brunswick, 1860. (J. H. H.)


Footnotes

1 Text B reads : " proprietas perveniat."



The above article was written by: J. H. Hessels, M.A.



Search the Encyclopedia:



About this EncyclopediaTop ContributorsAll ContributorsToday in History
Sitemaps
Terms of UsePrivacyContact Us



© 2005-17 1902 Encyclopedia. All Rights Reserved.

This website is the free online Encyclopedia Britannica (9th Edition and 10th Edition) with added expert translations and commentaries