M. (Paul) Rapin de Thoyras.

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Defcendants (2) were deprived of the right of fucceed n£
to the, Crown, before the Reign of Philip le Lm,g.
Marculphiis mentions the former in feveral places of hjs
Formularies, but fays not a Word of the latter, which li-
the point 111 queftion. it nemaios therefore^ that this re-
written Law, this inviolable Cuftom, is to be founded up-
on examples and precedents, by which it was eltablnh-
ed, or al leaft confirmed, otherwifc there is lio knowing
what to think of it. It ftiould therefore be fhown, (bat
before the Reign of Philip le Long, there were inftanccs
of Women and their Defcendants being excluded lie m
the Crown, by virtue of the Salic Law, or inviolable
Cuftom : And this is what remains to be examined.

To begin with the third Race, from Hugh Capet to
Philip le Long, no fuch cafe could happen, for the Kings
of that Family fucceeded from Father to Son.

In the fecond Race, it is not poflible to find any in-
ftance in favour of the Salic Law, or inviolable Cuftom.
On the contrary, a precedent might be brought in fa-
vour of the Females from divers Princes, defcended from
Charlemain by the Female Line, dividing the French Mo-
narchy, and pofteffing feveral parts of Charlemain's Suc-
ceffion. But as this was at- a tim# when there were on-
ly two Princes alive of that Emperor's Family ; name-
ly, the Emperor Arnold, who was a natural Son, and
Charles the Simple, who might alfo be deemed as fuch,
I fhall not inlift upon it.

The firft Race affords three precedents, which mav fa-
vour the Cuftom in queftion. The Daughters of Childe-
bert I, King of Paris, fucceeded not their Father, but
Clotaire I, their Uncle poflefled his Brother's Kingdom.
Shortly after, Chercbert King of Paris dying without
Male-Iffue, Gontran, Sigebert, and Chilperic his Brothers
fhared the Succeffion, without leaving any part to his
Daughters. Gontran having but one Daughter, left his
Kingdom to Childebert II, his Nephew. If it could be
ftiown, that all this was done in confequence of the Satk
Law, or inviolable Cuftom, thefe precedents would amount
to the ftrongeft proofs. But unhappily, not a fingle Wri-
ter before Philip le Long, (peaks on this occafion of the
Salic Law or Cuftom. It is true, Meicrai, who wrote
twelve hundred years after, boldly affirms, that Clotaire
fucceeded his Brother by virtue of the Salic Law, and
that this is the firft inftance of the oblervance thereof.
But in relating the Fact, lie favs Clotaire imprifoned his
Nieces {■>), for fear they fhould difpute with him their Fa-
ther's Succeffion. The fame thing happened in the Suc-
ceffion of Chercbert. His Brothers ufed force to feize his
Kingdom, without alledging the Salic Law to fupport
their Right (4). Accordingly Prefident Fauchet, convin-
ced of the violence practifed on thefe two occafions,
gives up thefe two Precedents (cj, and confines himfeif
to the third, which is the moft fpecious. Gontran having
but one Daughter, adopted Childebert II, his Nephew,
and left him his Kingdom. But this Daughter was a



(1) Rapin muft have everlooked a Paflage in Father Daniels Hiftory, quored from Agathiai, exprefsly mentioning this Law. The TalTige is likewife
alledged by Faucbct and Du Cbejne. Agatbmi, the Scholaftick or Lawyer, lived in the fixth Century, and begin to wtite the Conrinuation of Juftin.an's
Hiftory after Procopius, in 565. This Author, at the end of Chap, vii. Lib. ii. fays, " VVhilft thefe Things palfed, Theobald, who ruled in France
•' over the Provinces next to Italy, died in rhe Flower of his Youth — . Cbildtbert and Clotaire, as his neartft Rclali ns, were by th; Lain of the
<• Country called to the Succeffion of his Kingdom." By the Law ot the Country then, Theobald'i two Sifters were excluded fiom the Right of fuccceding
him. As for Cbudebcrt's Daughters, Agatbias continues thus : " But the Difputes about the D.vifion had like to ruin their Dominions, Childebert
" betides his extreme old Age, languilhed with an incurable Difeafe. He had only Daughters, *nd no Male Iffue who might inherit the Crown." Thc.e
laft Wurds feem to be a demonftrative Preof, that it was then univerfally known, that the Daughters of France were abfolotejy excluded from the R : ght of
Succeffion to the Crown. Agatbiai did not fay this to favour Clotaire, who fucceeded his Brother Childebert in exclufion of his Nieces, for he was boin in
Afta, and lived very remote from Frame. He was cutempcrary wah thele K ; ngs.

(2) There was no occafion to fay their Defendants. For there are two ditte-rent Queftiens ; the firft, which i< proprr'y the Point in hand, V/hcther the
Daughters wire antient.y excluded /ram the Crown? The frcond, which has nothing to do here, Whether the Sons of tbofe Daughters •were of eld excluded
from the Crown with their Mothers ? The former feems to be exprefsly mentioned by Agnthias : ^ce the foregoing Note.

(3) Gregory de Tours, a Cotempuiaiy, fays only, he banilhed them, with then Mother. And Father Daniel makes them not to be banilhed till
fomc time after his Father's Death, when Cbramne, Son of Clotaire, rebelled againft him a fecond time.' Mineral's Words are, '• Their Uncle.
" whether in hatred of tbclr Father, or for fear of their fretending to the Succeffion, kept them in Piifon till he was poflefled of ihe Kingdom. "'
This alternative of Doubt it only a Conjecture of Mcztrai. For Clotaire feems to have acted rather cut of hatred to his Brother, than from politic 1
Views.

(4) This does not feem to agree with what Rapin fays in the Hiftory o( the Church of Kent, p. 65, where he rcprelcnts Chilperic, who fuccced d
his Brother Chercbert, as behaving like a Father to his Brother's Daughters, and retufing to marry Bertha, one of them, to Etbelbert Kin» of Kent,



becaufe he was an Idolater. Now Chilperic, hid he thought (he had the ieall Realon to claim her Favher's Suceiiion, fh .u'd. hive been glad of fa
fair an Opportunity to fend away his Niece. Indeed, it does not appear that he ufed any Violence upon them; or impriiVncd them, as Rapin infj.
nuatcs-

(5) Rapin does not quote Faucbct, fj it is to be fuppofed he alludes to what this Author fays in his Treatife, de V Ongire del pfonjtex, Sec 1. I.
c. I. where he gives the Reafons why the Daughters of France are excluded. " I forbear, fays he, to fpeak of the Diughtcrs of Cbudeb.rt I, King if
" Pant, lor it may be faid, their Uncle Clotaire was fo ftrong, that it was eafy for him to fhul them up in a Cijilter. Much lels fhall I fpeak oF
«' thofe of Chercbert, alfo King of Pans, becaufe it will oe faid, their Uncles did nat treat them more civilly. But what can be objected to what
"Gontran did to Clotilda his own Daughter, &c. ?" In this PaiTaje, Fau.bet does not feem ablblutely to give up the two firft Precedents, but on. 1 /
thinks them liable to the Objections he mentions. For he urf.es them both as Enemies of Uic Exclufion of the Daughters, in Chaf. (1. i- 3. del AntiZ
ouitez, &c.



No. 23. Vol. I,



4-50



The HISTORY of ENGLAND.



Vol. I.



Nun (i). tieiides, from Gontran'% believing it in his
power to leave his Succeflion entire to Childebert II, with-



out giving any



fhare to Chtaire II, who was alfo his



Nephew, and Childebcrt's Brother (2), it may, it feems
be inferred, that he did not look upon himfelf as bound
by any Law, and that there was not then any fettled
rule with refpeft to the Succeflion (3). It will be faid
perhaps, that in appointing Childebert, the eldeft of the
two Brothers, for his SuccdTor, he only followed the
difpofition of the Law or Cuftom ; but this objection is
groundlcfs (+)• The whole Hiftory of the firft race
plainly fhows, the eldeft had no Privilege, and that the
Kingdoms, of which the French Monarchy then confift-
ed, were always divided among the Brothers (5). But
be that as it will, it is not fumoient to fhow, that Gon-
tran did a thing agreeable to the pretended difpofition
of the Salic Law or Cuftom, it muft alfo be proved,
that he did it with intention to obferve that Cuftom or
Law, which I think impoffible (6). It would be quite a-
nother thing, if the Law was perfedly known, or the
Cuftom undeniably eftablifhed by former precedents, which
might give occafion to fuppofe Gontran defigned to conform
himfelf to it (7J. If a Man examines what paffed during



the firft Race, with refpeft to the Succeflion, he will find
nothing fixed or fettled upon that head ; and that force
and Arms, had a greater fhare in it than Laws. This is
fo true, that it is even doubtful, according to Father Da-
niel, whether the Children were to be preferred to the
Brothers, and that this queftion was not fully decided till
long after the beginning cf the fecond Race (8). It is
evident then, from what has been faid, that the opi-
nion that there was in France, before the Reign of Phi-
lip le Long, a Law or Cuftom excluding the Daughters
from the fucceffion to the Crown, cannot be fupported
by any certain Teftimony, or undeniable matter of
Faft.

Having fhown what we are to underftand by the Salic
Law, of which fo many People talk, without having a
juft notion of the thing, it will be neceflary, in order
fully to clear this matter, to make appear how the prac-
tice of this Law was eftiblifhed in France. But for the
better underftanding of this, it will be proper to fet be-
fore the Reader the following part of the Genealogy of
the Kings of France, which will ferve likewife to fhow
the occafion of the difpute between Edward and Philip
de Valois.

St. Lewis, A'.

of France.



Philip the Hardy,

K. cf France.
A



Philip the Fair,
K. o/" France.



Lewis Hit-
tin, K. of
France.



- A.-



Joanna.



John
Pojl-
hum.



Philip le
long, K. of
France (9).
I

rr ^ ^

Joanna Ifabella

Eudes D.
of Burg.



Charles the
Fair, K. of
France.



Margaret



Mary



Blanch

Pojl-
hum.



Ifabella
Edw. II,
K. ^England.

* Edward III.

King of Eng-
land.



Charles Earl
of Valois.

* Philip de
Valois, K.
cf France,



Lewis Hutin dying in 1 3 1 6 left by Clemence of Bur-
gundy his Wife only one Daughter, an Infant called Jo-
anna. But as his Queen was big with Child, the Crown
was not difpofed of till fhe was delivered. The reafon
of this delay was, becaufe, if the Queen was delivered of
a Son, he was to fuccecd his Father, not by virtue of the
Salic Law, but by a Law, common to all States, accor-
ding to which the Males have always the preference to
the^ Females of the fame degree. Till the Queen's de-
livery, Philip le Long, the eldeft of the deceafed King's
two Brothers, was appointed Regent. I fay, appointed,
in the Words of Father Daniel, who does not acquaint us
by whom he was appointed. Philip was then at Lyons,
bufy in procuring a Conclave for the Election of a new
Pope. This was the reafon he could not come to
Paris, till three Weeks after the death of the King his
Brother. He found there a Party already formed againft
him, at the Head of which was Charles Earl of Valois his
Uncle, who intended to difpute the Regency with him,
and was in poffeffion of the Louvre. But Philip, at his
arrival, found means to diflodge him. The next day, he
allembled the Parliament, and by the unanimous confent
of the Lords and Knights there prefent, the Regency was
adjudged to him for eighteen Years, in cafe the Queen
was delivered of a Son.



Mean time, as the Queen might chance to have a
Daughter, Eudes Duke of Burgundy, Uncle bv the Mo-
ther's fide to Joanna, Daughter of the late King, was
preparing to profecute his Niece's right. At length, the
Queen was brought to bed of a Prince, who was called
John, and lived but a few days. Then Philip, grounding
his claim upon the Salic Law, pretended the Crown was
fallen to him. As he had a powerful Party, and was un-
willing to have his Title queftioned, he repaired to
Rheims, in order to be crowned. But the Duke of Bur-
gundy oppofed the Coronation, with a Proteftation, in the
prefence of the Peers, to maintain Joanna's Right, to
whom he pretended the Crown belonged, both by natu-
ral and civil Law ; and at leaft the Coronation ought
not to be performed, before the pretenfions of the young
Princefs were duly examined. Though the Earl of Va-
lois had attended Philip to Rheims, he was known to be
a friend of the Duke of Burgundy's. On the other hand,
Charles Earl of Alarche, the King's own Brother, be-
ing of the fame Party, left Rheims the morning before
the Solemnity. If the Salic Law could be proved to be
acknowledged and admitted before that time, I confefs,
the oppofition of thefe Princes would be of no great
weight. But as that proof is very difficult, as I have be-
fore fhown, it may be inferred from the oppofition of



(1) This docs not feem to be > convincing Reafon why Gontran fhould difpoffefs a Daughter he entirely loved. For if Gontran had thought his Daugh-
ter cnu'd have the leaft Shadow of Right to fucceed him, would he have made her a Nun ' So that her being a Nun, is rather a (bong Preemption, that
the Dauchters could not fuccecd to the frown. But it maybe faid, was (he not a Nun before her Father adopted Cbildtbtrt his Nephew > Now this ought
to be pruved indeed, to make Rapm's Argument of any force : bot the contrary is molt probable. For Mmrai fays, Gontran was not married till hi*
Arceflion to the Crown in 561. Now fuppofing Gontran married Cktilda'% Mother the firft Year cf his Reign, (he was too ycung to receive the I'til in
577. when he adopted his Nephew Cbildtbtrt. Eefides, in » Treaty with his adopted Son, an Article is inferted, "That whatever is granted by King
" Gontran, to his Daughter Clotilda, whether Movables, Cities, Lands, and Revenues, (hall remain in her pofieflu n. " Such Grants do net feem fit tor
a Nun, though a I rincefs. Now this Treaty (as Fautbtt fays) was made in 587, that is, ten Year? after his making Cbildtbtrt his univerf.il Heir. But
after all. fuppofing (he was a Nun before Cbildtbtrt's Adoption, would not Gontran, upun the Death of his Sons, inftead cf adopting a Niphew, have pro-
cured a Difpenl'ation for a beloved Daughter, if the Salu Law would have allowed it ? So that CUilda's being a Nun, cannot weaken the Argument drawn
from her Exclufion, in favour of the Salic Law. ...

(a) Rafm is miftaken in making Cbildtbtrt to be eldeft Brother of Ctuain II. They were only Coufin Cerman;, Sons of two Brothers; the flirt of
Sigebcrt, King of Auflrajia ; and the other of Cbilferic, King of Neufina. So that his Remark, that the eldeft had no Privilege, &c. is not to the pur-
pife here.

■ (5) Does not the contrary feem rather to be inferred from this Prince's Conduft, that he did think himfelf bound by the Law or Cuftom, excluding
the Females from the Crown, and knew the Succeffion to be fo fettled in an inviolable manner ; otherwife it is incredible that he fhcuid not do what
lay in his Power, to leave his Dominions to his only beloved Daughter.

'(4) That this Objection is not altogether without Foundation is certain, frcm the PafTagc of Agatbtat, in the Note above.

(5) Rafm did not feem to be of the Opinion, that the Succeflion v.as divided among all the Brothers, in the DiliVrtation on the Government of the
Sax it, p. 158, 159 Neither indeed was it true, as appears in a Citation from huztrat, in p- 158, of the fame Diffe.tation.

(6) As Gontran himfelf fucceeded to part tf his Brother's Succeflion, in Exclufion of his three Nieces, Cbcrtbtrt's Daughters, it is more than pro-
bable, that he adopted his Nephew in Exclufion of hit Daughter, in conference of the fame Law or Cuftom by which he was preleircd to hit

(7) We have for it the Authority of Agatbiai, who fpeaks of it in exprefs Terms ; and the Treaty between Gontran and Cbildtbtrt, where it is fup-
bofed, and made the Foundation of their Agreement. Befidcs, this Law or Cuftom is to be confidered as unqucfticnably eftabliftcd, before Gontran di'pulcd
of hii Dominions, .in prejudice of his own Daughter, fince there were three Examples in fifteen Years : 1. The Exclufion of Ibtebald's Sillers in 555.
J. Of Cbildtbtrt's two' Daughters in 558. 3. Of Cbcrtbtrt's three Daughters in 570.

rs % There were Contefts between Brothers and Coufins, concerning the SuccctTion ; but it does not appear, that the Exclufion of the Daughters was uncer-
tain or doubtful.

(9; t>u HaiHan fays, Pbilif It Long had four Daughters, whoft Names were, Joanna, Margartt, Mary, Jn J Bhntb.

the



Book X.



^Dissertation on the SALIC LAW.



451



Pan. Hifl.
ie France.



the Princes of the Blood themfelves, and contrary to their
own Interefts, that this Law parted not then for incon-
teftable.

The Duke of Burgundy's Proteftation, and Prince
Charles's Retreat, made Philip fo uneafy, that he ordered
the Gates of Rheims to be fhut during the Ceremony of
the Coronation, for fear of interruption, or that other
Peers might abfent themfelves. A (cw days after, he held
an Aflembly at Paris, where were prefent a great number
of Nobles, almoft all the Prelates, the moil confiderable
BurgefTes of Paris, and the Univerfity. It was this Af-
fembly that examined the Laws of the State ; decided,
that the Females were incapable of fucceeding to the
Crown ; and approved and confirmed the King's Corona-
tion. It might be demanded, whether fuch an Afiembly
had power to make a decifion of this nature ; but fince
the French Nation has thought fit to receive it, it is need-
lefs to infift upon that. I fhall only obferve, that it was
now almoft nine hundred years fince the eftablifhment of
the Monarchy, and this the firft time it was exprefsly de-
cided in France, that the Daughters were incapable of fuc-
ceeding to the Crown.

Notwithstanding this decifion, Queen Clemence, Wi-
dow of the late King, the Earl of Marche the King's
Brother, the Earl of Valois his Uncle, the Duke of Bur-
gundy Prince of the Blood, and their adherents, did not
fail to (how a diflatisfa&ion, at feeing Philip on the
Throne. This created uneafinefs in the new King, who,
to free himfelf from it, found means to gain the Duke
of Burgundy, the head of the Party, by giving him his
cldeft Daughter in marriage, with the Earldom of Bur-
gundy for her Portion. The Duke being thus gained, the
Party difperfed, and the Salic Law parted, from thence-
forward, for a Law as antient as the Monarchy. But
great care was taken to confound, as has been done ever
fince, the Salic Law in general, or the Collection of
Salic Laws, with the pretended Salic Law in particular,
which excluded the Daughters from fucceeding to the
Crown.

Philip le Long being dead, after a fhort Reign, and
leaving only Daughters , Charles the Fair his Brother,
mounted the Throne without oppofition, to the prejudice
of his Nieces. This was a fecond decifion in favour of
the Males. From that time none ever thought of quef-
tioning the Authority of the Salic Law. Thus way efta-
blifhed the obfervance of this famous Law in France, with-
out its being yet known, whether Philip le Long, in
urging it in fupport of his pretenfions, proceeded upon
the fixth Paragraph of the 6zd Title of the Salic Law,
or upon inviolable Cuftom. What may be affirmed, is,
that in thofe days the French muft have had very con-
fufed notions concerning this Law, fince even after its
being inconteftably acknowledged for authentick, the moft
learned cannot agree upon that fubjecL

I come now to the fameus Difpute between Philip of
Valois and Edward III. Charles the Fair, who died Fe-
bruary 1328, leaving no Male-Irtue, and his Queen find-
ing herfelf with Child, the fame Rule was followed as
was obferved after the death of Lewis Hutin. That is,
the Crown was not difpofed of, till the Queen's Delivery,
who was feven months gone with child. But it was
necefiary to appoint a Regent, to take care of the Go-
vernment in the mean while. Then it was that the
great Conteft about the Regency arofe, between Ed-
ward III, Nephew, by his Mother, to Charles the Fair,
and Philip Earl of Valois, Coufin German to the fame
Prince. This was an affair of very great confequence.
Befides that the Regency was to be long, in cafe the
Queen was delivered of a Son, it was eafy to forefee, that
the Judgment given for the Regency, would be a ftrong
Precedent for the Crown, if fhe happened to have a Daugh-
ter. For this reafon the affair was very warmly con-
tefted on both fides, not before the States-General, as
fome have affirmed without any foundation, but before
an Artembly of great Men, purpofely convened upon that
occafion. Edward pleaded his being the next Male-
Heir of the late King. Philip adhered to the Salic Law,
which, according to him, excluded not only the Daugh-
ters, but alfo their Defcendants, from the Succeflion to
the Crown, and confequently from the Regency. Philip
carried the Caufe as to the Regency, and was afterwards
crowned, upon the Queen's being delivered of a Daugh-
ter in April. As Edward endeavoured not to profecute
his Right till fome years after , the queftion between
them, was no longer concerning the Regency, but the
Crown itfelf. All the French Hiftorians call Edward's
pretenfions chimerical ; and the Englijh, on their part,
exclaim againft the injuftice that was done him. The
bufinefs therefore at prefent is to examine the Rights of
both Parties, independently of the Events, and Philip's



porteffion. This will be the only mean? to enable us to
judge, whether the War occafioncd by this affair, wa,
juft or unjuft, or whether, as I believe, there was on
both fides, fufficicnt reafon to juftify the attack and the
defence.

In order to have a clear notion of this matter, it muft
he confidered, that the Point in quertion between the two
Kings, was not, Whether there was any fuch thing as a
Salic Law, excluding the Daughters from the Succeflion
to the Crown of France f Whether the 1 aw was red, or
only imaginary, it was equally the intereft of both Kings
to fuppofe it, fince it was the folc foundation of their re-
fpc&ive Claims. Without this Law, the Crown would
have indifputably belonged to Joanna Daughter of Lewis
Hutin, and the two laft Kings muft have been reckoned
Ufurpers. Moreover, had there been no Salic Law, Phi-
Zip and Edward would have been manifeftly excluded by
the Daughters of the three laft Kings, Sons of Philip the
Fair. 'Fhe only thing therefore was to know, whether
the Salic Law was limited to the Perfons of the Daugh-
ters, to exclude them from the Succeflion, or whether it
extended to all their Pofterity. This was a new Query,
which had never been decided, becaufe the fame cafe had
never happened, fince the beginning of the Monarchy!
Philip maintained, that Edward could pretend to the
Crown, but by right of Reprefentation, as Son of Ifabella ;
and that reprefenting only a Woman, he could not de-
rive from his Mother, a right which fhe had not. But
Edivard took care not to ground his Claim upon Reprefen-
tation. He infifted, on the contrary, upon nearnefs of
Blood ; and affirmed, that the Crown was devolved to him,
as the next Male- Heir capable of fucceeding.

Jndeed, it cannot be conceived what ufe he could have
made of Reprefentation, which ferves only to put a diftant
Relation, in the place of the Perfon reprefented. He had
no occafion to be brought nearer, fince he was Nephew of
the late King, and Philip de Valois but Coufin-German.
Accordingly, in all the pieces in the Colleclion cf the Pub-
lick Aels concerning this matter, there is not fo much as
one, where he alledges in his behalf the right of Repre-
fentation, but always that of nearnefs of Blood. And jet
almoft all the French Authors that have writ on this Sub-
ject, have been pleafed to combat this chimaera, and ground
their reafonings upon the impertinency of this RepreTenta-
tion ; which, after all, was never urged by Edward. The
Englijh, for their part, are fallen into the li!»e erroi, by
ftrenuoufly oppofing the Exiftencc of the Salic Law, not
confidering, it was no lefs necertary for Edward than for
Philip. So, it may be affirmed, both fides have utuLr-
ftood, and ftated the queftion wrong.

But, to prevent miftakes, and clear this matter as much
as poflible, a Man muft fancy himfelf coterr.porarv v.i:h
this Difpute, and confider that the point in queftion was
never decided. Each Party therefore was free, bcf.re the
decifion, to explain and comment upon the Salic Law,
as he judged for his purpofe, without being liable tu be
taxed with rafhnefs. Whereas now it would be ridi-
culous to difpute upon the interpretation of a Law ac-
knowledged by the French, and admitted, as then ex-
plained by Philip, and which they have ever fince fol-
lowed.

This being fuppofed , the bufinefs then, in order to



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