Saturday, 24 August 2019

The Salic Right

Andrew Stepanenko
July 04, 2019 <>

Translated by Berenkova Violetta Michailovna

The description of tribal life usually specifies that the property is collective, but it concerns only capital fund - the lands and cattle; there is also some property that is inherited in the family on the mother’s side. The wife does not inherit from the husband, as the husband and the wife are not blood relatives. This rule is in force in Europe even now: the outlived spouse does not enter one of parantela (this term has remained in the European right as well) and is strictly restrained in his right of inheritance. The outlived spouse has often only the right of lifelong property using of the died spouse.
The father’s guardianship over his children is not provided, however the father has the right to manage the property of his wife and children. This model was described by Engels in the antique Greek society: children belong to the mother’s family, and the father is only the managing regent. In this model the man possesses the power, the right to manage, and the woman owns the property, has the right to own. According to this legal ground in 1732 Charles Albrecht, Prince Elector of Bavaria and Friedrich August, Prince Elector of Saxony had a claim on a part of the Habsburgers’ lands on behalf of their wives, Joseph I Habsburger's daughters, to be exact, on behalf of his wife’s daughters. According to the Salic right, this claim is legally faultless, but the Habsburgers changed the Salic right by means of the Pragmatical Sanction, and claims of his sons-in-law lost the legal ground.
The royal court has no power to solve Salic family’s disputes; however, all courts of that epoch were arranged in a single tribal structure: the senior relatives judged the younger ones. In Europe, similar patrimonial courts were mostly cancelled only in 1848-1849. For this reason, the state judicial system and systems of punishment execution got full development only since the middle of 19 century.

Russian peasants trampled a horsestealer with all village, including small children, in order the entire community could go to the deportation. It is modified vendetta when all family is responsible to the criminal’s family for some adequate revenge. However, it is clear that the penalty for murder makes the mind clear better than murder, and the risks are lower. That is, when the Salic right imposes large, very impossible for one-person penalties for murder, it is a really clever idea.
“The insolvent murderer … can involve … relatives in payment of the missing sum... If … relatives do not pay debts … all friends and acquaintances of the debtor have an opportunity to buy out the criminal”, - so is written in Salic truth. Relatives cannot refuse this requirement of a joint liability: if the family were not able to expel him in time, it is necessary to pay for their relative.
There is also a different situation. If a person wants to release himself/herslf from the risks connected with the joint liability for high penalties, imposed on the family members, he/she can cease belonging to the family with the rite of renunciation of the family. The similar termination of the joint liability happens with the boy at the moment of symbolical death before his marriage. Sometimes he even loses the right to visit his paternal home, instead of bearing the joint liability with his parents at the suit.
Here it is necessary to mention Malinalli’s exile – Hernan Cortes’s Aztec princesses and spouse - from her family. It deprived her son with Hernan Cortes of the dynastic rights, and Cortes himself – of the rights to become the reigning regent with the son.

Accepting joint liability happens much more often than refusal of it - usually via fraternization or adoption.

In Europe this theme is heavily flooded with the story about Caritas Romana (the Roman Charity) when the daughter secretly picks her way to a prison and breastfeeds her father who was sentenced to death through starvation. In practice, the sense of the story is not in starvation.

The fact that the man got into prison means that his own family had broken with him in order not to bear solidary responsibility with him. In such situation, he would be extradition to the claimant family and, probably, death. Therefore, when the daughter fed her father with her breast, he immediately became her nursing son and acquired with it the legal right to solidary responsibility and to the redemption as well. If it was a question of payment of the penalty for the murder, and she possessed necessary some of money, she really salvaged him – stage-by-stage and legally correctly.

Personalities of the well-known women-pirates specify that concept “coastal brotherhood” was not a meaningless phrase, and pirates really passed through the rite of adoption by the named mother of the brotherhood. The function of the piracy queen was not rushing around on the deck with a sabre and bare breast; she provided legal unity of the ill-matched family.

The list of "bad customs” of the feudalism, described the pre-revolutionary historian V.K. Piskorski included aria - the penalty in case of fire in the peasant’s farm. However, the similar word denoted another mentioned custom when seigneurs forced peasants to nurse their children that caused protests. Historians of XIX century argued on the meaning of this term, but now it means the penalty for fire (according to "the Feudal society" by Mark Block).
The main question is: why were the peasants, easily nursing puppies and pigs, so indignant? The answer is clear: whoever who was fed with the woman’s breast five times, became her child, and she became his/his mother. Her husband became the father of the child, and everyone who was also nursed by this woman, became his/her brother or the sister (radaa'ah).
If a seigneur took the power over a community not according to rules, in such case the compulsion of village elder’s wife to breastfeeding of the new seigneur’s son changed his status: the aggressor became the relative, and it was is already impossible to get rid of him with murder or something of the kind.
The feudal system continually demanded similar "family" ceremonies. The secret land trade generated rather ridiculous situations: a powerful seigneur, buying the land of any minor nobleman, was forced to pay homage to him and to become his vassal “with hands and mouth”. Arsia had absolutely the same message.

Emperor Heraclius (son) was definitely adopted by the spouse of his father to get a higher status and to acquire the formal right to dynastic marriage with Fabia-Eudoxia, and so, to the Byzantine throne. In the tradition of that epoch Heraclius was certainly breastfed for this purpose.
Here is a historical fact: “Wei Zhongxian was a favorite at the beginning of XVII century. Has took the power thanks to his relationship with the imperial wet nurse” (Vladimir Ivanovich Semanov “From the life of Empress Cixi”). That fact, that the wet nurse was the nursing mother of the former emperor and became a springboard for the following one, is clear: she was also a noble lady who provided the admission upward to the power. She had imperial blood.
Maria Feodorovna Nagaya was the tsarina and the last wife of Ivan IV. On July 18, 1605 was her solemn entrance into Moscow where she identified False Dmitriy I  as her son. Taking the mentioned above into consideration, only at that moment False Dmitriy I, who had actually won the battle by that time, legitimized his dynastic rights.

The situation with Konstantin, Catherine II’s grandson is interesting. This name was untypical in the Romanovs’ dynasty, but ordinary among the Byzantine emperors. Konstantin learnt the Greek language, he was brought up as the successor of the throne of the revived Byzantine monarchy. He was nursed with the “Greek wet nurse”.
In such situation it is necessary to know precisely, how noble Konstantin’s “Greek wet nurse” was. Three-five breast feedings were enough to make the magic rite of adoption legal, and Konstantin found the second mother, obviously possessing the dynastic rights to the lands which were under the Ottoman dynasty’s control.
And here it is necessary to consider that at that time nursing children were not considered as successors in Islam any more. Moslems abolished that traditional, but extremely dangerous legal norm in the politics, but it still existed in Europe. Nowadays in Europe ledally adopted children possess all legal rights. Thus, Catherine II got involved in a situation when the Christian countries would accept the capture of the Ottoman territories as totally legal, and the Islam countries – as totally lawless. In 1831 at the pick of the so-called "Polish revolt" Konstantin and his wife (which mother’s side is not mentioned by the historians), died, and the matter ended.

Regarding Islam countries this magic procedure of adoption is used directly even nowadays: feeding by women of their daughters’ cousins allows these daughters not to cover their faces in the presence of their (that is extremely convenient in everyday life). In big peasant families, it was impossible to survive without constant labour cooperation of the families, so contacts of cousins of different sexes were inevitable. Actually, here we have not arranged, but mass resistance to prohibition on relatives communication, which is in fact necessary in practice. The rules of behavior generated in the elite harems with their constant struggle for the gender-shifted power, often have no sense in real life, and people correct these rules for improvement of their relations.

Now we will consider difficult, hardly understood points of common law.

The following two rights come to mind at once: the right to the first night with the subordinates’ brides and mainmort, that is, the right to take anything from the subordinate’s inheritance. The right of the seigneur to the first-born (he is often the baby’s father as well) is less known. Hypotheses about an essence of these rights are usual mixed up on sex and tyranny ideas; however, they are logic development of family norms. The Kazakhs used to give the first-born baby to the grandfather and the grandma for bringing-up, and it was a family tradition, not seigneurial one.
It is possible to assume that it was based on the right of seniors to a share in all that the youngers had got: if you were younger and received something valuable you should share it with seniors. Therefore and the first wineglass is sometimes poured out, it is a victim act to ancestors. When the tribal top began the self-isolation process, they began to lose the moral rights to such things: the formal right to a part from the inheritance was available, but the community did not recognize the moral seigneur right any more. But there is something much more important in the sources of the rights of the seigneur: the demographic policy of the community.

In the Internet there is a videoclip about a pagan monastery somewhere in Africa. Young maidens of the tribe reaching maturity age all get into this monastery. There they stay under the vigilant control of the shaman, work in the field, make ritual copulation with a wooden imitation of a phallus of the local deity and ask the Harvest God to send harvest to their tribe.
The reason of creation of that structure is hunger. The primitive agricultural industry is extremely vulnerable, sometimes low harvest period lasts for 2-3 years. In such situation the control of birth rate is question number 1. Each pregnant woman not only eats enough for two people, not all work is suitable for her. In other communities, there is a necessity to murder children and otherwise, children die, because their growing organisms are incapable to survive on roots and orach. So, the most obvious method to resist to undesirable conceptions is to stop marriages while the situation with harvest is not stabilized. It was widely practiced in Russian villages: marriages were contracted only at the crop period and if the crop was bad, the wedding was postpone for a year under that plausible excuse that the13-15-year-old bride was not mature enough. It is clear, why the girl of the mentioned above tribe pray to the Harvest God, and you may be sure that they pray sincerely. It is required to wait for some weather "window" during which the tribe will manage to make food reserve for 3-5 years at least.
In Tibet, where the crop is chronically poor, to escape starvation, they have created the practice of murder of newborn girls and the tradition of polyandry when one lying-in woman is necessary to have 3-4 supporters. In Africa and Europe they used to create female monasteries: women worked, but did not give birth. In case of productivity growth, novices returned to the world, but if hunger was severe, the most senior women took the veil just because there were no grooms for their age group.

In the Third World countries, ritual defloration is performed by either the chief, or a priest (it is still in practice nowadays). In Egypt till the middle of 19 century the bride was deflowered by a priest in public with a finger wrapped up in a pure handkerchief. The deflorator role in such situation was as follows: to make sure that the rules are not broken, and nobody touched the girls. If the girl was not a virgin, it was necessary to conduct investigation and to punish the guilty. The community could not afford luxury of forgiving such offences. Those traditions which seem to modern "righteous people" who have never starved and, especially, haven ever been in a crucial situation, as the enforced program of ethics, was actually natural peasant miserliness; it appeared as the result of hunger fear which had been developing in people for centuries. Nobody likes to bury children. The community preferred to teach a severe lesson that teenager who could not cope with his sexual frustration.
The same sense had public demonstration of a bed-sheet, and the same sense was in the right to permit or not to permit weddings, inherited by landowners from the tribal society system. In Russia there were regions where landowners did not permit the wedding for years due to mortgage taken in the bank; otherwise all profit would be spent on prevention of the hunger disaster in the controlled communities, instead of paying the mortgage.
The seigneur in Europe had the same role: the seigneur was responsible or survival of the whole villages, that is why when the young man redeemed his seigneur’s right of the first night for a great sum of money, he actually compensated his seigneur the losses of the forthcoming period of pregnancy and feeding of his future spouse.
The last legal case when a nobleman was punished for using the right of the first night in Russia was in 1875. When peasants began to purchase their lands, external adjustment of the birth rate became legally impossible, and just at that time the beginning of struggle against “illegitimate births” started. Google Ngram Viewer shows the first mention of the word "illegitimate" in 1820 and the peak was in 1877, just around the year of the last legal case for using the seigneur’s right. The problem became really acute.
According to the date of the earliest mention about snokhachestvo (1875), it as a phenomenon appeared in Russia synchronously with the legal compulsion of landowners to disclaimer of the seigneur’s right. So socially necessary functions of controllers simply moved to a step lower - to peasant patriarchs.
A French saying “to take the bride to a monastery” (for defloration by monks) in still in use nowadays. Of course, it was not fornication, but obviously accessible method to regulate the birth rate in the Middle Ages. As a result, the first-born children were very often taken to the same monastery – according to a severe country principle: the one, who made the child, had to feed him.
If defloration was performed by a secular person, for example, the Pharaoh or the Sultan, the right to the first-borns (and obligation to accept them) passed to them. Circumstances specify that at least a part of the “blood tax” (devshirme and, probably, yasyri) were such cases: boys were given to the blood fathers, providing to their offspring satisfiable career in public service. From this point of view, the Egyptian priests using a finger and a handkerchief were the cleverest ones: the social role was performed, and it was not necessary to keep a casually conceived bastard for the rest of life.

The term "prostitution" is treated as “to expose to shame”, however the exact definition is different – “to put ahead”. The word is related to the same multicompound term "constitution" where the meaning "ahead” is reasonable, and the meaning "shame" is basically impossible. Antique temples carried out the same socially significant role, as medieval ones: gave out to the future lying-in woman the marriage permission.

In the light of told above the appreciable part of rites of the past lose their obscenity aura. They were not about sex, but were some survival strategy. At some moment, these roots of these customs were forgotten, and in mind, there is only an obscene picture which cannot be taught to teenagers at schools. Thus, unlike this obscene picture, it is possible to teach the original picture of the past: a pregnant student at school is still a problem - for the same original reasons.

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