Salic law

“ Of a Civil Law of the German Nations.
ISHALL here explain how that particular passage of the Salic law, which is commonly distinguished by the term The Salic Law, relates to the institutions of a people who do not cultivate the earth, or at least who cultivate it but very little.
The Salic [11] law ordains that when a man has left children behind him, the males shall succeed to the Salic land, to the prejudice of the females. ”

“ The tariff of indemnities or compensations to be paid for each crime formed the basis of the code of laws amongst the principal tribes of Franks, a code essentially barbarian, and called the Salic law, or law of the Salians (Fig. 7) . Such, however, was the spirit of inequality among the German races, that it became an established principle for justice to be subservient to the rank of individuals. The more powerful a man was, the more he was protected by the law; the lower his rank, the less the law protected him. ”

“ It is a law on which there is now not the slightest dispute whatever. Other nations have, since the full and universal recognition of this principle among ourselves, adjudged the throne to princesses. But France has still observed its ancient usage. Time has conferred on this usage the force of the most sacred of laws. At what time the Salic law was framed or interpreted is not of the slightest consequence; it does exist, it is respectable, it is useful ”

“ And, afterwards, the emperor Clothaire made the following edict, preserved in the Lombard law: "Whatever freeman, summoned to the defence of his country by his Count, or his officers, shall neglect to go, and the enemy enter the country to lay it waste, or otherwise damage our liege subjects, he shall incur a capital punishment." As the crimes of cowardice, treachery, and desertion were so odious and ignominious among the Germans, we find by the Salic law, that penalties were annexed to the unjust imputation of them. ”

“ As mentioned above, the earliest text of the Salic law provides no general penalty for it. In subsequent recensions, besides the fine imposed for cannibalism, some MSS. have clauses imposing fines for bewitching with ligatures and killing men with incantations—in the latter case, with the alternative of burning alive—but even these disappear in the Lex Emendata of Charlemagne, possibly in consequence of the legislation of the Capitularies described below. ”

“ It prohibited encroachments upon personal liberty, and declared the sale of a freeman to be equivalent in atrocity to the crime of homicide. In almost every provision which did not conflict with the claims of the priesthood, it hearkened to the voice of mercy and humanity. By the constant menace and certain infliction of civil degradation, confiscation, and perpetual servitude, it secured the fidelity of the judges and fiscal officers of the state. It accepted the great principle of the Salic law, and, with worldly prudence, forbade [186] the election of a female sovereign. ”

“ In the latter code, moreover, the master was prohibited, under the severe penalties of banishment and sequestration of property, from either maiming or murdering his own slave, (lib. 6, tit. 5, leyes 12, 13;) while, in other codes of the barbarians, the penalty was confined to similar trespasses on the slaves of another; and, by the Salic law, no higher mulct was imposed for killing, than for kidnapping a slave. (Lex Salica, tit. 11, sec. 1, 3.) The legislation of the Visigoths, in those particulars, seems to have regarded this unhappy race as not merely a distinct species of property. ”

“ The derivation from the River Saal, which Holinshed calls Sala, is wholly untenable, as well as the imputation on the virtue of the German ladies of the district through which that river runs. The Salic law never prevailed in any part of Germany, but was peculiar to such Keltic nations as France and Spain. It continued to prevail in France until the abolition of the monarchy under Louis Philippe in 1848, and was never a question so much as debated in the Imperial monarchy under the first or the third Napoleons. ”

“ As pointed out by H. Brunner in his Deutsche Rechtsgeschichte (i. 438) , the Salic Law contains imitations of the Visigothic laws of Euric (466–485) . Finally, chapter xlvii. seems to indicate that the Frankish power extended south of the Loire, since it speaks of men dwelling “trans Legerem” being summoned to the mallus (judicial assembly) and being allowed eighty nights for their journey. On the other hand, it is impossible to place the date of compilation later. ”

“ If daughters had been generally excluded by the Salic law from the inheritance of land, it would be impossible to explain the histories, formularies, and charters, which are continually mentioning the lands and possessions of the women, under the first race. ”

“ The following article in the Salic law shows at once the frequency of these bloody quarrels, and the laudable endeavors of the legislature to restrain them;—"If at a feast where there are four or five men in company, one of them be killed, the rest shall either convict one as the offender, or shall jointly pay the composition for his death. ”

“ It occurs again in clause XLVI., which enacts that the same payment has to be paid to the parentes of a person sold out of the country beyond recall as if he had been killed. This rule is the same in the Salic and Ripuarian codes. But in this law a distinction is made between the case of a slain man leaving an heir, and the case of his leaving no heir.
Wergeld of 200 solidi if no heir of the person slain.
If he cannot recall him let him pay for him with a wergeld to the parentes. That is twice 80 solidi if he leave an heir. But if he does not leave an heir let him compound with 200 solidi. ”

“ As Solem observed, id., at 284-285, 103 S.Ct., at 3006-3007, the principle of proportionality was familiar to English law at the time the Declaration of Rights was drafted. The Magna Carta provided that " [a] free man shall not be fined for a small offence, except in proportion to the measure of the offense; and for a great offence he shall be fined in proportion to the magnitude of the offence, saving his freehold. ”

“ I choose, then, to take the course that accords with the language of the Constitution and with our interpretation of it through the first half of this century. I reject the principle, aptly described and faithfully followed in Justice O'CONNOR's dissent, that a traditional procedure of our society becomes unconstitutional whenever the Members of this Court "lose . . . confidence" in it, post, at 63. And like Justice Cardozo in Snyder, I affirm that no procedure firmly rooted in the practices of our people can be so "fundamentally unfair" as to deny due process of law. ”

“ Instead, the Court adopts a new principle that can accurately be described as follows: "Where a term of art has a plain meaning, the Court will divine the statute's purpose and substitute a meaning more appropriate to that purpose."
I feel constrained to mention, though it is surely superfluous for decision of the present case, the so-called rule of lenity-the venerable principle that "before a man can be punished as a criminal under the federal law his case must be plainly and unmistakably within the provisions of some statute." ”

“ It is plain from the opinion, however, that the Court understood "false making" (as I do) to be merely a recitation of the central element of forgery. Indeed, that is the whole basis for the decision. Thus, the Court's discussion of the common-law meaning of "forges" begins as follows:
"In 1847 it was decided in the English case of Regina v. White . . . that 'indorsing a bill of exchange under a false assumption of authority to indorse it per procuration, is not forgery, there being no false making.' " 370 U.S., at 655, 82 S.Ct., at 1402. ”

“ In the legal world of the time, and in the context of restricting punishment determined by the Crown (or the Crown's judges) , "illegall" and "unusuall" were identical for practical purposes. Not all punishments were specified by statute; many were determined by the common law. Departures from the common law were lawful only if authorized by statute. ”

“ They are examples of applying, not a proportionality principle, but rather the principle (curiously in accord with the original meaning of the phrase in the English Declaration of Rights, discussed above) that a punishment is "cruel and unusual" if it is illegal because not sanctioned by common law or statute. In Driver, the court had imposed a sentence of five years in county jail for the common-law offense of assault and battery, for which no statutory penalty had been established. ”

“ Or alternatively, one may say, as we have said until today with respect to the tax statutes, that "willfully" refers to consciousness of both the act and its illegality. But it seems to me impossible to say that the word refers to consciousness that some legal text exists, without consciousness that that legal text is binding, i.e., with the good-faith belief that it is not a valid law. ”

“ The reason we say that the right not to be sued elsewhere than in Naples is "adequately vindicable," ante, at 501, by merely reversing any judgment obtained in violation of it is, quite simply, that the law does not deem the right important enough to be vindicated by, as it were, an injunction against its violation obtained through interlocutory appeal. The importance of the right asserted has always been a significant part of our collateral order doctrine. ”

“ Whether it was the CERCLA Congress that envisioned this, or the SARA Congress, is to me irrelevant. The law does.
Finding that the statute renders the States liable in private suits for money damages, I must consider the continuing validity of Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890) , which held that the Eleventh Amendment precludes individuals from bringing damages suits against States in federal court even where the asserted basis of jurisdiction is not diversity of citizenship but the existence of a federal question. ”

“ Madison, 1 Cranch 137 (1803) -the very exercise of judicial power asserted in Scheiner. To hold a governmental Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it; and when, as in this case, the constitutionality of a state statute is placed in issue, the question is not whether some decision of ours "applies" in the way that a law applies; the question is whether the Constitution, as interpreted in that decision, invalidates the statute. Since the Constitution does not change from year to year ”

“ Now this Law both Gaguinus and other Writers of like Stamp tell us, was written by Pharamond; and he calls it a most famous Law, even to his Time. For in his Life of Philip of Valois; "The Salick Law (says he) was a Bar to Edward's Title; which Law being first given by Pharamond to the Franks, has been religiously observed, even to those Days. By that Law, only the Heirs Male of our Kings are capable of governing the Kingdom, and no Females can be admitted to that Dignity. ”

“ The very framing of the issue that we purport to decide today-whether our decision in Scheiner shall "apply" retroactively-presupposes a view of our decisions as creating the law, as opposed to declaring what the law already is. ”

“ The annotation lists 16 States and the United States as supporting the view, and only 2 States (Kentucky and Tennessee) as opposing it. If such minimal "divergence"-by States with statutes that did not include the term "falsely made" (see supra, at 124-125) -is sufficient to eliminate a common-law meaning long accepted by virtually all the courts and by apparently all the commentators, the principle of common-law meaning might as well be frankly abandoned. ”

“ It does not remotely apply, however, to the prospect of a policeman yelling "Stop, in the name of the law!" at a fleeing form that continues to flee. That is no seizure. [2] Nor can the result respondent wishes to achieve be produced indirectly, as it were-by suggesting that Pertoso's uncomplied-with show of authority was a common-law arrest, and then appealing to the principle that all common-law arrests are seizures. An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority. ”

“ Whatever it is that we are expounding in this area, it is not a Constitution.
Because our "negative" Commerce Clause jurisprudence is inherently unstable, it will repeatedly result in the upsetting of settled expectations. My fellow dissenters in Scheiner seek to avoid this consequence in the present case – or, more precisely, seek to avoid extending this consequence beyond the unfortunate State before the Court in Scheiner, to all other States that had similar laws – by embracing a rule of prospective decisionmaking. ”

“ From these laws it will be seen that the privilege or pledge of the landlord for his rent is superior to the privilege given by the Civil Code to the factor who advances money or necessary supplies to the planter; and, by the proviso of the act of 1874, it is still made superior to the pledge which that law authorizes the planter to make to the factor for his advances. It was in view of this superior right of the lessor that Saloy was asked to join in a contract between the Dragons, as planters of Monsecour, and Simon Bloch, who agreed to make advances for the cultivation thereof. ”