42 – The Medieval Transformation Part 4: The Salic Law

Today’s episode begins with a cliché that keeps hanging over people’s collective imagining of the post-Roman world: ‘the Dark Ages.’ In the early 14^th century the Italian writer Petrarch claimed that after the Roman Empire fell Europe entered into a dark period. Later writers building off of his work claimed that this period ended with the Renaissance, ‘Renaissance’ being a French word that literally means, ‘rebirth,’ in this case the rebirth of knowledge. For centuries historians waxed poetic about the greatness of the Roman Empire while detailing the decline of literacy, technology and political cohesion after 476. This trope of Europe’s ‘Dark Age’ still plagues us today, even though it is mostly false.

First, those who compare the Roman Empire to the early medieval period are inevitably recalling the time of the Five Good Emperors, under which Rome reached its zenith. From the Antonine Plague until the Sack of Rome, the Empire was in horrendous shape. Cities were breeding grounds for plague, there was near-constant civil strife and foreign invasion. At times large regions of the empire seceded and made their own empires, as we covered in episode 26 The Gallic Empire. By contrast, the medieval period had a fair amount of chaos but there were some pretty glorious periods as well, such as under Charlemagne, which we’ll hopefully get to sometime next year if a meteor doesn’t wipe us out. Sorry if that was pessimistic, but 2020 isn’t over yet.

Second, historians often claimed that there was a massive decline in literacy during the post-Roman period. It’s possible that literacy declined somewhat, though this too is greatly exaggerated. Elites and administrators still read. An invigorated church kept learning alive through manuscript reproduction and transmission of the Bible. Moreover, recent research reveals that even low class people probably had some literacy. I’ll detail this in a moment, but suffice it to say free Franks kept deeds to property and could recognize basic contracts and titles.

The third and final reason the Dark Ages wasn’t so dark has to deal with technology. Older historians claimed that many of the technological innovations the Romans developed were lost due to the disruptions of the barbarian migrations. This is a massive exaggeration. One example of this is Roman concrete. The Romans were famous for their concrete mixtures they used in buildings which have lasted for thousands of years. The exact formula for Roman-style cement was lost but the post-Roman kingdoms understood how to mix building material and made similar constructions. Moreover, many ‘barbarians’ innovated and improved upon Roman technologies, as was the case with Frankish swords which were far more durable than their Roman counterparts.

Thus the ‘Dark Ages’ wasn’t nearly as backward as Monty Python would have you believe. This is important to remember in today’s episode on the law. While relatively few Franks could read complex texts, they could recognize basic writing, kept deeds and went to court. Law was not a strange elitist concept but something that even common free people could engage with, even if at times they struggled with its finer points.

The written word was essential for taxation, administration and the law. Sizeable towns had local law courts which dispensed with justice and through them and bureaucrats the written word spread throughout Francia. Moreover, the elite retained a culture of literacy. Noble banquets were opportunities for listening to works of new literature and classic Roman poetry, presumably before the nobles got so drunk they passed out on the floor.

Francia’s earliest laws were a hybrid of Salic law and Roman law. The Salic law was a series of traditional Frankish laws that Clovis compiled when he formed his kingdom. We don’t have the entire code, but we can learn a lot about Frankish culture from the bits and pieces that remain. The first law mandates that subjects must answer a summons from the king and shows the centrality of authority to Frankish life. The next few laws set punishments for stealing livestock, which was a major crime. Livestock was so valuable that if a domesticated animal wandered into another farmers’ land it was illegal to kill it, even if it was damaging crops. Moreover, stealing fencing material was a major crime since without a fence livestock could escape.

The Salic Law prescribed harsh punishments to deter crimes. For example, theft of something worth 2 denars carried a penalty of 600 denars. The reason why this was so harsh was because there wasn’t a police system at the time. Communities enforced their own, and without any detectives or means to gather reliable evidence, thieves could get away with stealing much more easily. As such, if a person was guilty of a crime the theory went that they had to be severely punished since it probably wasn’t their first crime.

Punishment varied significantly by one’s social status. Theft carried a fine for free Franks. Slaves caught stealing something worth 2 denars would have to pay the value of the object and receive 120 blows. Slaves who stole something worth 40 denars or more would either be castrated or pay an enormous fine, with the slave’s master responsible for paying the debt. Punishments for rape also varied by situation and class. If an unfree person raped a free woman then he would be put to death. A free man who raped an unfree woman would lose their free status, while a free man who raped a free woman would have to pay a large fine. However, if a free woman willingly followed a slave somewhere and he raped her then she would be punished by losing her freedom, since it was assumed she put herself in that situation. This was 1,500 years before the MeToo movement.

I mentioned in the last episode that a person’s weregild, the price one had to pay for killing someone, depended on rank. Fines also varied by their physical status, particularly for women. Killing a pregnant women carried a penalty of 28,000 denars, killing a fertile woman was 24,000 denars while killing a barren woman was 8,000 denars.

Speaking of violence, the law had a lot to say about that. Honestly, some of these are so great I’m just going to read Title XVII: Concerning Wounds:

1. If any one have wished to kill another person, and the blow have missed, he on whom it was proved shall be sentenced to 2500 denars, which make 63 shillings.
2. If any person have wished to strike another with a poisoned arrow, and the arrow have glanced aside, and it shall be proved on him; he shall be sentenced to 2500 denars, which make 63 shillings.
3. If any person strike another on the head so that the brain appears, and the three bones which lie above the brain shall project, he shall be sentenced to 1200 denars, which make 30 shillings.
4. But if it shall have been between the ribs or in the stomach, so that the wound appears and reaches to the entrails, he shall be sentenced to 1200 denars-which make 30 shillings-besides five shillings for the physician’s pay.
5. If any one shall have struck a man so that blood falls to the floor, and it be proved on him, he shall be sentenced to 600 denars, which make 15 shillings.
6. But if a freeman strike a freeman with his fist so that blood does not flow, he shall be sentenced for each blow-up to 3 blows-to 120 denars, which make 3 shillings.

As I mentioned before, violence was much more prevalent then than in our modern age, and the Franks had a lot of ideas on which acts were more egregious.

There were also some divisions between Frankish and Roman subjects within the Salic law. Under Clovis’ kingdom the Romans and Franks each adhered to their own legal system, though of course since they lived side-by-side the laws had to overlap. Assaulting and robbing a Frank carried a higher fine than mugging a Roman, but killing a Roman carried a higher fine. It’s hard to say why this was the case, though perhaps it was to restrain the dominant Franks from taking advantage of their new Roman subjects.

I have no transition to this next part, so let me just tell you about magic. Title XIX: Concerning Magicians, says: 1. If any one have given herbs to another so that he die, he shall be sentenced to 200 shillings (or shall surely be given over to fire). Since 200 shillings was such an exorbitant price, it meant that any non-noble who dabbled in magic would be killed. Meanwhile section 2 held: If any person have bewitched another, and he who was thus treated shall escape, the author of the crime, who is proved to have committed it, shall be sentenced to 2500 denars, which make 63 shillings.

Title XXX. Concerning Insults, is another series of laws that’s worth a full reading, starting with section 3, since we’re missing the first two laws:

3. If any one, man or woman, shall have called a woman harlot, and shall not have been able to prove it, he shall be sentenced to 1800 denars, which make 45 shillings.

4. If any person shall have called another “fox,” he shall be sentenced to 3 shillings.

5. If any man shall have called another “hare,” he shall be sentenced to 3 shillings.

6. If any man shall have brought it up against another that he have thrown away his shield, and shall not have been able to prove it, he shall be sentenced to 120 denars, which make 3 shillings.

7. If any man shall have called another “spy” or “perjurer,” and shall not have been able to prove it, he shall be sentenced to 600 denars, which make 15 shillings.

This might seem silly, but reputation was a powerful commodity in the pre-industrial world. Today people have degrees, titles and licenses which confirm their ability to perform trades, but in the medieval period one’s reputation was often the sole proof of their abilities and moral character. Moreover, reputation was the most important factor in legal disputes. Since there were no police, no detectives and no ability to gather evidence, criminal trials hinged upon a person’s reputation. Once a person’s reputation was sullied, they could be prosecuted far more easily. Recovering one’s reputation was arduous and near-impossible once they were found guilty of a serious crime.

Another important issue was that of migrants. Lowborn migration was discouraged for a number of reasons. First, when a lowborn person left one village for another it was possible they were a slave or serf that was fleeing their responsibility. Otherwise they might have been a bandit or other unseemly person. Churches were responsible for the welfare of their communities and new migrants meant new mouths to feed. Finally, frequent migration made it harder for bureaucrats to keep accurate tax records. For all these reasons migration was heavily discouraged and if someone migrated to a village and even one person opposed their migration they would be barred from settling there. But there was some hope for migrants. If they settled in a new village and their stay wasn’t opposed for a year then they would have the right to settle.

Another law concerned plundering corpses. As noted before, pre-Christian Franks traditionally buried their dead with valuable items in life as a means of honoring them and potentially equipping them for the afterlife. Even after converting to Catholicism the Franks kept this practice of ritualistic burial, meaning that a grave robber could acquire a lot of valuables from digging up a grave. The penalty for grave robbing was 8,000 denars, the same fine for killing a barren woman.

Title LVII deals with a unique Frankish custom called the Chrenecruda, an incredibly important ritual for a free man who killed another man and who did not have enough money to pay the weregild. Under Salic Law it was the legal right of families to feud and pursue an injury done to its honor, even with death. This meant criminals had to appeal to the law and pay fines for protection from a vengeful family, and no situation was more dire than when a murder occurred. When a murderer couldn’t afford to pay the weregild he performed the Chrenecruda ritual. First, the guilty man had to assemble 12 sworn witnesses to profess that he had no wealth left to give. Next, the guilty man had to go to his house and collect dust from each of the four corners. He then threw some of that dust over his left shoulder and onto the nearest relative, who would have to pay the weregild. If that person didn’t have enough money, he would have to keep throwing dust until he hit enough relatives that could pay. And if those relatives couldn’t pay then they would have to throw dust until they hit a relative who could pay. But if all the relatives couldn’t pay the weregild then the murderer would have to submit himself under the protection of his friends who would pay. But if neither family or friend could pay, then the man’s life was forfeit.

It’s an interesting Frankish ritual that shows the importance of community in society. These people were very poor and when one committed a major crime, like stealing even a small item, slaughtering someone else’s livestock or killing anyone other than an old woman, they usually couldn’t afford to pay the penalty. Thus, the entire family was responsible for making amends. Without a police force the first protection against crime was the family itself, whose job was to keep their own from bringing shame and economic ruin upon them.

One of the final parts of the Salic Law that remains deals with property. Property was important in a subsistence economy. Even small amounts of wealth could stave off hunger and arable land was a life and death issue. It’s worth reading Title 59 in its entirety:

Title LIX. Concerning Private Property.

1. If any man die and leave no sons, if the father and mother survive, they shall inherit.

2. If the father and mother do not survive, and he leave brothers or sisters, they shall inherit.

3. But if there are none, the sisters of the father shall inherit.

4. But if there are no sisters of the father, the sisters of the mother shall claim that inheritance.

5. If there are none of these, the nearest relatives on the father’s side shall succeed to that inheritance.

6. 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.

Anyone who knows French history knows how important this was. On the one hand, the division of property between sons meant that significant wealth accumulation was unthinkable for peasants, even up to the 19^th century. Furthermore, the prohibitions on women’s inheritance meant that men dominated society and even when a woman was the only one left within a family she could not take up a leading role. Thus, the Salic law forbid women from ruling over households and subsequently from ruling the kingdom directly, unlike in England where female monarchs could, and often did, become important rulers.

The Salic Law grew over time as Francia adopted various statutes, royal decrees and supplemented the law with local custom. When Charlemagne conquered central Europe the law spread with him and became a building block in European legal tradition.

Now that we’ve talked about the laws, let’s talk about putting them into practice. Frankish kings gave landowners the right to exercise justice over their land going back to the 7^th century, which led to territorialization. Keep in mind how limited the state was before the modern era; the king didn’t necessarily lose power by ‘granting’ license to estates, but gained it, since they were going to do what they wanted anyway and he made them act in his name and according to traditions set down from above and adjusted from below. Power was not top-down but a series of interconnected, ever-changing webs. Public justices administered the law in lands not given over to nobles, but royals increasingly granted immunities to aristocrats which banned royal officials from entering their lands. Naturally, central state authority weakened as churches and estate-holders were able to meet their ends without royal help. When Francia fell apart in the 10^th-11^th centuries lords were accustomed to administering their own land.

Documents were written in debased Latin, meaning they weren’t accessible to all people though far more than scholars previously thought. Many historians first assumed that literacy plummeted and only the church had books, since church libraries contain some of the few surviving documents. Yet, legal documents were fairly widespread even to some of the lower social ranks. Lay elite could almost certainly read as they wanted to ensure their property was protected by charters. Freedman held a document called a cartae which proved they were free. The laws were written in Latin, which wasn’t the Franks’ native language, but since Latin was a legal lingua franca across regions many people knew some basic Latin phrases.

The simplicity of legal formulae meant they were supposed to be understood by as many people as possible; even those with little literacy could understand some phrases. Thus while high levels of literacy were low, very basic recognition of letters or legal phrases was more widespread, and most households probably had some document attesting to their property ownership. Additionally, Franks collected documents settling small-scale disputes over individual fields or vineyards. As Alice Rio notes, a person could have, “documents of sale, loan securities, transfers of property, donations, marriage-gifts, dispute settlements, gifts, contracts, exchanges, agreements, deeds of security, annulments, judgments and records of judgment, contracts of obligation, and many other things.” In sum, even non-noble freemen could have a veritable library of legal documents in their home, which tells us that the Franks were not some illiterate, simplistic people but many freemen were at least semi-literate and actively engaged in complex legal procedures.

Sources:

The Salic Law, translated by The Avalon Project

Property and power in the early middle ages, ed.s Davies and Fouracre, 1995.

Creating Community with Food and Drink in Merovingian Gaul, by Bonnie Effros, 2002

Before France and Germany: The Creation and Transformation of the Merovingian World by Patrick Geary, 1988

Cemeteries and Society in Merovingian Gaul: Selected Studies in History and Archaeology, 1992-2009 by Guy Halsall, 2009.

Culture and Religion in Merovingian Gaul, A.D., 481-751 by Yitzhak Hen, 1995.

The Franks by Edward James, 1988.

Legal Practice and the Written Word in the Early Middle Ages : Frankish Formulae, c.500–1000 by Alice Rio, 2009.