Cambridge Ancient Hi.. - Index of

276 10. law in the western kingdoms
very period in which most scholars would place Lex Salica there is ecclesiastical
legislation which is as open in its acknowledgement of royal authority
as one could wish, the first council of Orleans in 511. 72
There are, however, arguments in favour of seeing Lex Salica as royal legislation.
The text begins with a decree about persons who neglect a
summons to the court, the mallus. The summons in question is said to be
legibus dominicis, ‘according to the king’s laws’. 73 It has also been argued that
the very construction of a title may show whether it is a collection of royal
decrees or of customary maxims. 74 There are, moreover, some turns of
phrase which suggest legislation: thus quae lex . . . conuenit obseruari 75 and hoc
conuenit obseruare 76 are reminiscent of the Decretio Childeberti’s repeated use
of conuenit and likewise its ita iussimus obseruari and placuit obseruari. 77
The difficulty with this argument is that there are two senses in which a
rule can be said to be royal in character. On the one hand, the king may
promulgate a traditional and customary rule, whether because he wishes to
assert his authority over the law or because the rule in question is being
flouted. The king gives his authority to the rule, but it does not originate
with him. On the other hand, the rule may be royal in a stronger sense –
namely, that the royal promulgation made something law when it had not
previously been law; in other words, the rule originated with the king. Title
55, on spoliations of corpses, offers a good example of new law alongside
old. In the C Recension of the Salic Law, rules were introduced into this title
in order to protect Christian tombs and churches; but they naturally followed
the pattern of the old laws in the title and are thus indistinguishable
in form. Similarly, in the Law of Æthelberht, which was certainly royal in
the sense of being promulgated by a king, there are new rules at the beginning
to protect the church; yet, the rule protecting the peace of a church,
ciricfrith, follows exactly the form of the rule protecting the peace of the
court, mæthlfrith. 78 Things become still more problematic when it is a question,
not of a single rule, but of an entire text. One might well admit that
some of the rules in Lex Salica appear to be royal in form without thereby
being committed to regarding the entire code as a royal promulgation. 79
The difficulty is to strike a just balance. On the one hand, Salic Law contains
leges dominicae; the king’s authority stands behind the law, for they are
his laws whatever their origin. On the other hand, the relationship between
72 Concilia Galliae, A. 511–A. 695, ed. C. de Clercq, CCSL 148a,p.4.
73 Unsurprisingly, this title is seen as royal law by Brunner (1906, 1928) i.432 n. 1.
74 Beyerle (1924). 75 PLS 42.1. 76 PLS 46.1.
77 Decretio Childeberti: for conuenit, passim; ita iussimus obseruari, ii.3; decreuimus obseruari, ii.5; placuit obseruari,
iii.7. Similarly, Edictus Chilperici, passim. 78 The Law of Æthelberht, c. 1.
79 There is a difficulty in Beyerle’s distinction (1924) between two types of dōm (both dominated by
the conditional clause), one of which he regards as a royal decree, namely that texts such as the Edicts
of Chilperic and Childebert II are not dominated by the conditional clause at all, but by the form conuenit
ut . ..
Cambridge Histories Online © Cambridge University Press, 2008