Legal order
English developments may help us to understand what had happened
earlier in the Frankish empire. The perambulations of the missi, the
empire-wide oath-taking, and the writing-down of bodies of territorial
law which followed Charlemagne’s imperial coronation in 800 were no
doubt the application of an ecclesiastical ideal of universal peace, but
they were also and to a greater degree the culmination of the spreading
of the king’s mundby individual grants and judgments since the earliest
days of the Frankish monarchy. Public authority beyond simple military
leadership stemmed from the king’s direction of a machinery for enforc-
ing his grants and adjudicating the disputes which arose from them.
And to get their pleas into the king’s court, Franks complained of
offences against this legal order, rather than against an ideal peace. The
protean quality of ordoin classical Latin vocabulary makes all the more
illuminating the contexts in which it was most frequently used. Before
the concept of an ‘order’ of persons with its proper place in society came
the idea of a proper ‘ordering’: of a procedure carried out properly, in
a regular manner, perhaps under the ‘orders’ of king or magistrate.
Amongst the Romans, it was the ordo iudiciorum publicum, the
‘ordinary’ way of trying criminals, and the parallel ordofor deciding
disputes about inheritance, which bulked largest. The Visigothic laws
speak of ‘the legal order’ (legalis ordo), the ‘order of succession’ to
property, and also of royal ‘ordering’ (ordinatio).^90
Merovingian pleas introduced the formula which shows clearly that
the dominant meaning of order was due process in the transfer and
inheritance of land. In 679 a lady complained in King Theuderic’s
palace that the estate which should have come to her by inheritance
from her mother was being withheld by the defendant, ‘in bad order’
(malo ordine). The same complaint, malo ordine contradiceret vel post
se retineret, recurs especially in pleas where it was claimed that the dis-
puted lands had been given to a church and returned to the donor for
his lifetime only; the dispute arose when the life-tenant died.^91 The
formularies have allegations that defendants ‘possess’ malo ordine
estates which properly belong to the complainants ‘by legitimate
Legal order 31(^90) Justinian’s Code, 3. 8; the Digest, 48. 1. 8; cf. W. Kunkel, An Introduction to Roman
Legal and Constitutional History, tr. J. M. Kelly, 2nd edn. (Oxford UP, 1973), 69 ff.; Leges
Visigothorum, ed. K. Zeumer, MGH Legum Sectio 1. i (Hanover, 1902), 78. 15 , 99. 10 , 394. 1
etc.for legalis ordo, and 244. 5 , 344. 5 , 367. 15 etc.for regalis ordinatio; Leges Burgundionum,
ed. L. R. von Salis, MGH Leges nationum Germanicarum 2, i (Hanover, 1892), 88. 5 , 99. 10
for inheritance aequo iure et ordine.
(^91) Diplomata... Merowingica, nos. 49, 59, 83; diplomas of the mayors of the palace, nos.
10 (p. 98. 4 ), 18 (104. 45 ).