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the evolution of frankish written law 275
opinion, that Germanic written law began with Euric and the Visigoths.
Frankish written law may be just as old.
It is also worth asking the fundamental question, however, whether Salic
Law was indeed promulgated on royal authority. The Shorter Prologue was
added when the C Recension was made. 68 It presents an account of the
genesis of Lex Salica, which, while it is plainly legendary, conceives it as
being the creation of men learned in the law and fails to mention any royal
involvement. If we compare it with the Burgundian Liber Constitutionum of
517 the differences are very obvious. In the latter case, not only is there a
prologue declaring the text to have been promulgated by Sigismund in the
second year of his reign, there are also several other royal decrees, dated
and often also located. 69 Moreover, the concerns of the king are regularly
proclaimed. To give only one notable example, judges are firmly said to be
royal appointees. 70 There are no laws within the text of Lex Salica itself
which are, in the same fashion as the Burgundian decrees, overtly royal. Yet
there are several in the texts attached to Lex Salica in one or more manuscripts:
the Pactus pro Tenore Pacis of Childebert I and Chlothar I, the edicts
of Chilperic I and of Childebert II. The contrast becomes all the more
striking when we look at the texts of these royal decrees and compare them
with Lex Salica. None of them follows the standard form of the main law:
‘If anyone has done X, let him be judged liable to pay Y.’
There are indeed texts attached to Lex Salica which normally follow this
form, but they are as innocent of overt royal features as is Lex Salica itself.
The earliest is the one called Capitulary V by Eckhardt (though placed last
in his edition, it is the only one frequently to give penalties in denarii as well
as solidi and to use the equivalence of forty denarii to one solidus); there are
numerous parallels between its contents and those of Lex Salica; it has not
a single reference to the king. If we go outside the Lex Salica and its
appended texts to Frankish royal legislation preserved elsewhere, the contrast
remains: overtly royal texts are not dominated by the dōm type of
decree. 71 The Frankish pattern is thus quite different from the Kentish. The
difference is underlined by comparison with the church councils. In the
68 A probable terminus post quem for the C Recension is the link with c. 22 of the Council of Tours,
567. This cites not just the Old Testament but also the Interpretatio to the Codex Theodosianus on incestuous
unions. The same passage is cited in PLS 13.11: see Eckhardt (1954) 216–17. The terminus ante
quem proposed by Eckhardt, namely the somewhat different treatment of incest in the Decretio Childeberti
i.2, is hardly compelling, since, in its general command to the bishops to reform by their preaching the
remaining incestuous unions, it may simply be referring back to the Council of Tours.
69 Liber Constitutionum ed. de Salis, Leg. Burg., MGH Leg. i, ii.1 (Hanover, 1892), or ed. F. Beyerle,
Germanenrechte, x (Weimar, 1936), xlii, xlv, lii, lxii (date only), lxxvi, lxxix. On the ascriptions to
Sigismund and Gundobad, see Beyerle (1954) 24–7.
70 Liber Constitutionum xc, ed. de Salis, Leg. Burg. 110.
71 Capitularia Regum Francorum i.i, ed. A. Boretius, MGH, Capit. (Hanover, 1881), no. 2, Childeberti I
Regis Praeceptum (pp. 2–3); no. 5, Guntchramni Regis Edictum (pp. 10–12); no. 8, Chlotharii II Praeceptio
(pp. 18–19); no. 9, Chlotharii II Edictum (pp. 20–3).
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