By the second half of the year 1589 the Crown of France couldn’t act anymore as the guarantor of the unity and continuity of the political body. King Henri III had been assassinated in the beginning of August, and the Kingdom found itself...
moreBy the second half of the year 1589 the Crown of France couldn’t act anymore as the guarantor of the unity and continuity of the political body. King Henri III had been assassinated in the beginning of August, and the Kingdom found itself with two kings. Said with a recurrent medieval and renaissance metaphor, the Crown, once divorced from king Henri (for many French Catholics even before his death) found itself with two husbands: Henri IV and his uncle Charles X. In fact, following the French customary law, ‘le mort saisit le vif’, a king would succeed to the Crown immediately after the death of his predecessor, even before his sacred and coronation. Since the death of Henri of Valois’ brother in 1584, the Duc of Alençon, a plethora of printed books and political pamphlets have been published concerning the fundamental juridical basis for the Crown succession: a written war concerning all religious and political factions.
However, from the year 1589 until 1594, this subject was more vivid than ever before. Who would succeed Henri III? Which law, customary, feudal, Roman or even canon could legitimize such a succession? What are the records, historical examples, or even the origin of such laws?
Of the Salian land let no portion pass to a woman, but of the land of this nature, let belong to the virile sex
One of the possible answers lies in the Salic Law or to quote Ralph Giesey, the legend of the salic law. In reality, a single article preventing women from allodial succession of the ‘salic land’, the Salic law manuscripts were rediscovered in the late 14th century and rapidly became a juridical instrument in favour of the French king during the hundred-years’ war. This process of political and juridical overinterpretation reshaped a previously unknown allodial law of the early middle-ages to an irrefutable argument for the succession of the French Crown.
In fact, it was sufficient to ‘correct’ the text, substituting salian land with kingdom. Wasn’t the salian land the land of the Salian Franks, the ancestors of modern Frenchmen? However, this salian land didn’t include the actual spatiality, the same territory of the French Kingdom. In fact, already for late medieval and early modern French jurists and chroniclers the law had clearly been written before the arrival of Franks in Gaul. Therefore, the law wasn’t just about the succession of a specific allodial land, or a kingdom understood as a geographical space, the Kingdom’s territory, but it concerned the succession of the metaphysical body of the kingdom, an abstract concept: the Crown. Consequently, its origins were quickly attributed to king Pharamond, grandfather of Meroveous himself, first king of the Franks, founder of the French Crown and it’s first corpus of laws.
Especially after its first publication in 1488, the salic law became a customary place in juridical and in historical treatises. However, during the second half of the 16th century, many authorities questioned its validity. The salic law became a recurrent topic of debate for political and juridical struggles throughout the French Wars of Religion, it was denounced both as a pure invention and as mere article of a private law. It was employed to denounce the illegitimacy of queen Catherine de Medici – the salic law as an ancient juridical protection against the many dangers of the so called ‘gynecocracy’ - as much as it was refused to defend her. In any case, whoever tried to reemploy the salic law had to do so within an historiographical frame. Being perceived by many -for example by Jean Bodin – as a primitive law of the Realm, it was necessarily connected to primeval times, to the most ancient origins of the French nation. The older, the better. Moreover, as it was used as an instrument to regulate the dynastic succession of the monarchy, the salic law was also connected with the origins of the Crown itself.
One of the participants of this enraging debate -equally composed of juridical expertise, historical knowledge and personal insults- was Jean Guyart, an almost unknown advocate active in Tours and Le Mans. In 1590, when he published two short in-4 treaties with two local printers, Claude de Montroeil and Jean Richer, Tours was nothing less that the provisional capital of the Kingdom, as Paris was being controlled by the catholic league. Therefore, it’s no surprise that the De l’origine, vérité et usance de la loy salique fondamentale et conservatrice de la monarchie française, and the Traité de l’origine, ancienne noblesse et droit rayaux de Hugues Capet, Roi de France, souches de nos rois Bourbon, were both written to support, juridically, historically and genealogically, the claims of Henri of Navarre against Charles of Bourbon. As you may have already understood, I’ll only discuss the first treaty, as a curious and interesting example of the relation between the salic law, national historiography and the French Crown in this crucial period of the War of Religions.
These two books, were presented by Guyart as an extrapolation of a bigger project, titled Les paradoxes de l’histoire Françoise, probably never published. History lies in fact at the centre of Jean Guyart’s treaty concerning salic law. What seemed to be the main subject of the salic law, namely the impossibility for women to succeed to the kingdom, it’s almost completely neglected. What really matters, it is the antiquity of a fundamental law of succession that grants continuity the Crown and the Kingdom: in this regard the salic law become a historical and juridical container for customary law and feudal law. The masculine line of succession as well as primogeniture are granted by the salic law. In Guyart’s view even the right of blood is granted by the salic law. To the abstraction of the concept of Crown is superposed a further level of abstraction, thanks to the jack of all trade of legitimacy, the salic law. And what might legitimize the law that legitimizes the Crown in order to legitimize the claims of Henri IV? History and antiquarianism.
Following Guyart’s Franco-Gallic historical reconstruction, the ancient Gauls did, as many thought at the time, invaded much of Europe and Asia. The Germans, thus the Franks, are descendants of the Gauls. One of the Galllic tribe were the brave Salusiens. The Salusiens couldn’t bear the tyrannic yoke of the romans, therefore they migrated to the Rhine, to southern Netherlands. There, they slowly changed their name in Saliens and, in order to celebrate their franchise, they called themselves Franks. The Salian Franks. Yet, they never forgot their gallic heritage and they subsequently came back to free their native country.
Therefore, the Saliens Franks never knew Roman Jurisdiction, nor roman laws. Instead, they could manage the successions of their dukes and kinglets with an ancient system of orally transmitted customary law, that, as Guyart conjectures, should be -surprisingly- similar to French customary and feudal law. This was in fact the original core of the salic law, the most fundamental of all. Before the return trip in Gaul, the first King Pharamond of the Gallo-germanic Salien Franks, son of duke Marcomir, decided with four jurists to write down the previously orally transmitted laws, in order to assure the perpetuity of the Crown as well as his lineage. The salic law was born.
Here things get more complicated. For Guyart’s the real salic law has since been lost, and may lay in a forgotten abbey somewhere in France. The actual salic law is nothing more than an allodial document concerning private law, probably inspired by the true and sadly lost salic law corpus. In a fascinating plot twist, the Crown itself had become, over time, the salic law. In fact, being slowly forgotten but unconsciously used to manage and regulate the succession of the Crown for hundreds of years, the once oral, then written then forgotten salic law is in the year 1590 still valid as customary national law inseparable from the Crown. Without the law, the Crown could not survive a single king, without the Crown and French customs of succession, the real salic law couldn’t even be known. Without ancient history, nothing of this would be understandable.
Jean Guyart’s two known books were mostly ignored by contemporary critics: Eliane Viennot considers them mostly fabulous. However, Viennot also showed how his treaty on salic law circulated among the high aristocracy. Maybe the theories of an advocate of Touraine concerning salic law and the Crown were not so influential, but his insistence on this supposedly fundamental law of the realm wasn’t so unrealistic nor improbable. Three years later, in another context, for another reason, with the Arrest of the parliament of 1593, the salic law really became the fundamental law of the kingdom for Crown succession.
