FRENCH LAW AND INSTITUTIONS

_Celtic Period._--The remotest times to which history gives us access

with reference to the law and institutions formerly existing in the

country which is now called France are those in which the dominant race

at least was Celtic. On the whole, our knowledge is small of the law and

institutions of these Celts, or Gauls, whose tribes constituted

independent Gaul. For their reconstruction, modern scholars draw upon

two sources; firstly, there is the information furnished by the

classical writers and by Caesar and Strabo in particular, which is

trustworthy but somewhat scanty; the other source, which is not so pure,

consists in the accounts found in those legal works of the middle ages

written in the neo-Celtic dialects, the most important and the greater

number of which belong to Ireland. A reconstruction from them is always

hazardous, however delicate and scientific be the criticism which is

brought to bear on it, as in the case of d'Arbois de Jubainville, for

example. Moreover, in the historical evolution of French institutions

those of the Celts or Gauls are of little importance. Not one of them

can be shown to have survived in later law. What has survived of the

Celtic race is the blood and temperament, still found in a great many

Frenchmen, certain traits which the ancients remarked in the Gauls being

still recognizable: _bellum gerere et argute loqui_.

_Roman Period._--It was the Roman conquest and rule which really formed

Gaul, for she was Romanized to the point of losing almost completely

that which persists most stubbornly in a conquered nation, namely, the

language; the Breton-speaking population came to France later, from

Britain. The institutions of Roman Gaul became identical with those of

the Roman empire, provincial and municipal government undergoing the

same evolution as in the other parts of the empire. It was under Roman

supremacy too, as M. d'Arbois de Jubainville has shown, that the

ownership of land became personal and free in Gaul. The law for the

Gallo-Romans was that which was administered by the _conventus_ of the

magistrate; there are only a few peculiarities, mere Gallicisms,

resulting from conventions or usage, which are pointed out by Roman

jurisconsults of the classical age. The administrative reforms of

Diocletian and Constantine applied to Gaul as to the rest of the empire.

Gaul under this rule consisted of seventeen provinces, divided between

two dioceses, ten in the diocese of the Gauls, under the authority of

the praetorian prefect, who resided at Treves; and the other seven in

the _dioecesis septem provinciarum_, under the authority of a

_vicarius_. The Gallo-Romans became Christian with the other subjects of

the empire; the Church extended thither her powerful organization

modelled on the administrative organization, each _civitas_ having a

bishop, just as it had a _curia_ and municipal magistrates. But,

although endowed with privileges by the Christian emperors, the Church

did not yet encroach upon the civil power. She had the right of

acquiring property, of holding councils, subject to the imperial

authority, and of the free election of bishops. But only the first germs

of ecclesiastical jurisdiction are to be traced. In virtue of the laws,

the bishops were privileged arbitrators, and in the matter of public

sins exercised a disciplinary jurisdiction over the clergy and the

faithful. In the second half of the 4th century, monasteries appeared in

Gaul. After the fall of the Western empire, there was left to the

Gallo-Romans as an expression of its law, which was also theirs, a

written legislation. It consisted of the imperial constitutions,

contained in the Gregorian, Hermogenian and Theodosian codes (the two

former being private compilations, and the third an official

collection), and the writings of the five jurists (Gaius, Papinian,

Paulus, Ulpian and Modestinus), to which Valentinian III. had in 426

given the force of law.

_The Barbarian Invasion._--The invasions and settlements of the

barbarians open a new period. Though there were robbery and violence in

every case, the various barbarian kingdoms set up in Gaul were

established under different conditions. In those of the Burgundians and

Visigoths, the owners of the great estates, which had been the

prevailing form of landed property in Roman Gaul, suffered partial

dispossession, according to a system the rules regulating which can, in

the case of the Burgundians, be traced almost exactly. It is doubtful

whether a similar process took place in the case of the Frankish

settlements, but their first conquests in the north and east seem to

have led to the extermination or total expulsion of the Gallo-Roman

population. It is impossible to say to what extent, in these various

settlements, the system of collective property prevailing among the

Germanic tribes was adopted. Another important difference was that, in

embracing Christianity, some of the barbarians became Arians, as in the

case of the Visigoths and Burgundians; others Catholic, as in the case

of the Franks. This was probably the main cause of the absorption of the

other kingdoms into the Frankish monarchy. In each case, however, the

barbarian king appeared as wishing not to overthrow the Roman

administration, but to profit by its continuation. The kings of the

Visigoths and Burgundians were at first actually representatives of the

Western empire, and Clovis himself was ready to accept from the emperor

Anastasius the title of consul; but these were but empty forms, similar

to the fictitious ties which long existed or still exist between China

or Turkey and certain parts of their former empires, now separated from

them for ever.

As soon as the Merovingian monarch had made himself master of Gaul, he

set himself to maintain and keep in working order the administrative

machinery of the Romans, save that the administrative unit was

henceforth no longer the _provincia_ but the _civitas_, which generally

took the name of _pagus_, and was placed under the authority of a count,

_comes_ or _grafio_ (_Graf_). Perhaps this was not entirely an

innovation, for it appears that at the end of the Roman supremacy

certain _civitates_ had already a _comes_. Further, several _pagi_ could

be united under the authority of a _dux_. The _pagus_ seems to have

generally been divided into hundreds (_centenae_).

But the Roman administrative machinery was too delicate to be handled by

barbarians; it could not survive for long, but underwent changes and

finally disappeared. Thus the Merovingians tried to levy the same direct

taxes as the Romans had done, the _capitatio terrena_ and the _capitatio

humana_, but they ceased to be imposts reassessed periodically in

accordance with the total sum fixed as necessary to meet the needs of

the state, and became fixed annual taxes on lands or persons; finally,

they disappeared as general imposts, continuing to exist only as

personal or territorial dues. In the same way the Roman municipal

organization, that of the _curiae_, survived for a considerable time

under the Merovingians, but was used only for the registration of

written deeds; under the Carolingians it disappeared, and with it the

old senatorial nobility which had been that of the Empire. The

administration of justice (apart from the king's tribunal) seems to have

been organized on a system borrowed partly from Roman and partly from

Germanic institutions; it naturally tends to assume popular forms.

Justice is administered by the count (_comes_) or his deputy

(_centenarius_ or _vicarius_), but on the verdict of notables called in

the texts _boni homines_ or _rachimburgii_. This takes place in an

assembly of all the free subjects, called _mallus_, at which every free

man is bound to attend at least a certain number of times a year, and in

which are promulgated the general acts emanating from the king. The

latter could issue commands or prohibitions under the name of _bannus_,

the violation of which entailed a fine of 60 _solidi_; the king also

administered justice (_in palatio_), assisted by the officers of his

household, his jurisdiction being unlimited and at the same time

undefined. He could hear all causes, but was not bound to hear any,

except, apparently, accusations of deliberate failure of justice and

breach of trust on the part of the _rachimburgii_.

Character of the Merovingian kingship.

But what proved the great disturbing element in Gallo-Roman society was

the fact that the conquerors, owing to their former customs and the

degree of their civilization, were all warriors, men whose chief

interest was to become practised in the handling of arms, and whose

normal state was that of war. It is true that under the Roman empire all

the men of a _civitas_ were obliged, in case of necessity, to march

against the enemy, and under the Frankish monarchy the count still

called together his _pagenses_ for this object. But the condition of the

barbarian was very different; he lived essentially for fighting. Hence

those gatherings or annual reviews of the _Campus Martius_, which

continued so long, in Austrasia at least. They constituted the chief

armed force; for mercenary troops, in spite of the assertions of some to

the contrary, play at this period only a small part. But this military

class, though not an aristocracy (for among the Franks the royal race

alone was noble), was to a large extent independent, and the king had to

attach these _leudes_ or _fideles_ to himself by gifts and favours. At

the same time the authority of the king gradually underwent a change in

character, though he always claimed to be the successor of the Roman

emperor. It gradually assumed that domestic or personal character that,

among the Germans, marked most of the relations between men. The

household of the king gained in political importance, by reason that the

heads of the principal offices in the palace became at the same time

high public officials. There was, moreover, a body of men more

especially attached to the king, the _antrustions_ (q.v.) and the

commensals (_convivae regis_) whose _weregeld_ (i.e. the price of a

man's life in the system of compensation then prevalent) was three times

greater than that of the other subjects of the same race.

The Frankish monarch had also the power of making laws, which he

exercised after consulting the chief men of the kingdom, both lay and

ecclesiastical, in the _placita_, which were meetings differing from the

_Campus Martius_ and apparently modelled principally on the councils of

the Church. But throughout the kingdom in many places the direct

authority of the king over the people ceased to make itself felt. The

_immunitates_, granted chiefly to the great ecclesiastical properties,

limited this authority in a curious way by forbidding public officials

to exercise their functions in the precinct of land which was _immunis_.

The judicial and fiscal rights frequently passed to the landowner, who

in any case became of necessity the intermediary between the supreme

power and the people. In regard to this last point, moreover, the case

seems to have been the same with all the great landowners or _potentes_,

whose territory was called _potestas_, and who gained a real authority

over those living within it; later in the middle ages they were called

_homines potestatis_ (_hommes de poeste_).

Other principles, arising perhaps less from Germanic custom strictly

speaking than from an inferior level of civilization, also contributed

towards the weakening of the royal power. The monarch, like his

contemporaries, considered the kingdom and the rights of the king over

it to be his property; consequently, he had the power of dealing with it

as if it were a private possession; it is this which gave rise to the

concessions of royal rights to individuals, and later to the partitions

of the kingdom, and then of the empire, between the sons of the king or

emperor, to the exclusion of the daughters, as in the division of an

inheritance in land. This proved one of the chief weaknesses of the

Merovingian monarchy.

Position of the Church.

In order to rule the Gallo-Romans, the barbarians had had inevitably to

ask the help of the Church, which was the representative of Roman

civilization. Further, the Merovingian monarch and the Catholic Church

had come into close alliance in their struggle with the Arians. The

result for the Church had been that she gained new privileges, but at

the same time became to a certain extent dependent. Under the

Merovingians the election of the bishop _a clero et populo_ is only

valid if it obtains the assent (_assensus_) of the king, who often

directly nominates the prelate. But at the same time the Church retains

her full right of acquiring property, and has her jurisdiction partially

recognized; that is to say, she not only exercises more freely than ever

a disciplinary jurisdiction, but the bishop, in place of the civil

power, administers civil and criminal justice over the clergy. The

councils had for a long time forbidden the clergy to cite one another

before secular tribunals; they had also, in the 6th century, forbidden

secular judges under pain of excommunication to cite before them and

judge the clergy, without permission of the bishop. A decree of Clotaire

II. (614) acknowledged the validity of these claims, but not completely;

a precise interpretation of the text is, however, difficult.

Carolingian period.

Beginnings of the feudal system.

The Merovingian dynasty perished of decay, amid increasing anarchy. The

crown passed, with the approval of the papacy, to an Austrasian mayor of

the palace and his family, one of those mayors of the palace (i.e. chief

officer of the king's household) who had been the last support of the

preceding dynasty. It was then that there developed a certain number of

institutions, which offered themselves as useful means of consolidating

the political organism, and were in reality the direct precursors of

feudalism. One was the royal benefice (_beneficium_), of which, without

doubt, the Church provided both the model and, in the first instance,

the material. The model was the _precaria_, a form of concession by

which it was customary for the Church to grant the possession of her

lands to free men; this practice she herself had copied from the

five-years leases granted by the Roman exchequer. Gradually, however,

the _precaria_ had become a concession made, in most cases, free and for

life. As regards the material, when the Austrasian mayors of the palace

(probably Charles Martel) wished to secure the support of the _fideles_

by fresh benefits, the royal treasury being exhausted, they turned to

the Church, which was at that time the greatest landowner, and took

lands from her to give to their warriors. In order to disguise the

robbery it was decided--perhaps as an afterthought--that these lands

should be held as _precariae_ from the Church, or from the monastic

houses which had furnished them. Later, when the royal treasury was

reorganized, the grants of land made by the kings naturally took a

similar form: the _beneficium_, as a free grant for life. Under the

Merovingians royal grants of land were in principle made in full

ownership, except, as Brunner has shown, that provision was made for a

revocation under certain circumstances. No special services seem to have

been attached to the benefice, whether granted by the king or by some

other person, but, in the second half of the 9th century at least, the

possession of the benefice is found as the characteristic of the

military class and the form of their pay. This we find clearly set forth

in the treatise _de ecclesiis et capellis_ of Hincmar of Reims. The

_beneficium_, in obedience to a natural law, soon tended to crystallize

into a perpetual and hereditary right. Another institution akin to the

_beneficium_ was the _senioratus_; by the _commendatio_, a form of

solemn contract, probably of Germanic origin, and chiefly characterized

by the placing of the hands between those of the lord, a man swore

absolute fidelity to another man, who became his _senior_. It became the

generally received idea (as expressed in the capitularies) that it was

natural and normal for every free man to have a _senior_. At the same

time a benefice was never granted unless accompanied by the

_commendatio_ of the beneficiary to the grantor. As the most important

_seniores_ were thus bound to the king and received from him their

benefices, he expected through them to command their men; but in reality

the king disappeared little by little in the _senior_. The king granted

as benefices not only lands, but public functions, such as those of

count or _dux_, which thus became possessions, held, first for life, and

later as hereditary properties. The Capitulary of Kiersy-sur-Oise (877),

which was formerly considered to have made fiefs legally and generally

hereditary, only proves that it was already the custom for benefices of

this kind, _honores_, to pass from the father to one of the sons.

Reforms of Charlemagne.

Carolingian fiscal system.

The Church under Charlemagne.

Charlemagne, while sanctioning these institutions, tried to arrest the

political decomposition. He reorganized the administration of justice,

fixing the respective jurisdictions of the count and the _centenarius_,

substituting for the _rachimburgii_ permanent _scabini_, chosen by the

count in the presence of the people, and defining the relations of the

count, as the representative of the central authority, with the

_advocati_ or _judices_ of _immunitates_ and _potestates_. He

reorganized the army, determining the obligations and the military

outfit of free men according to their means. Finally, he established

those regular inspections by the _missi dominici_ which are the subject

of so many of his capitularies. From the _De ordine palatii_ of Hincmar

of Reims, who follows the account of a contemporary of the great

emperor, we learn that he also regularly established two general

assemblies, _conventus_ or _placita_, in the year, one in the autumn,

the other in the spring, which were attended by the chief officials, lay

and ecclesiastical. It was here that the capitularies (q.v.) and all

important measures were first drawn up and then promulgated. The

revenues of the Carolingian monarch (which are no longer identical with

the finances of the state) consisted chiefly in the produce of the royal

lands (_villae_), which the king and his suite often came and consumed

on the spot; and it is known how carefully Charlemagne regulated the

administration of the _villae_. There were also the free gifts which the

great men were bound, according to custom, to bring to the _conventus_,

the contributions of this character from the monasteries practically

amounting to a tax; the regular personal or territorial dues into which

the old taxes had resolved themselves; the profits arising from the

courts (the royal _bannus_, and the _fredum_, or part of the

compensation-money which went to the king); finally, numberless

requisitions in kind, a usage which had without doubt existed

continuously since Roman times. The Church was loaded with honours and

had added a fresh prerogative to her former privileges, namely, the

right of levying a real tax in kind, the _tithe_. Since the 3rd century

she had tried to exact the payment of tithes from the faithful,

interpreting as applicable to the Christian clergy the texts in the Old

Testament bearing on the Levites; Gallican councils had repeatedly

proclaimed it as an obligation, though, it appears, with little success.

But from the reign of Pippin the Short onwards the civil law recognized

and sanctioned this obligation, and the capitularies of Charlemagne and

Louis the Debonnaire contain numerous provisions dealing with it.

Ecclesiastical jurisdiction extended farther and farther, but

Charlemagne, the protector of the papacy, maintained firmly his

authority over the Church. He nominated its dignitaries, both bishops

and abbots, who were true ecclesiastical officials, parallel with the

lay officials. In each _pagus_, bishop and count owed each other mutual

support, and the missi on the same circuit were ordinarily a count and a

bishop. In the first collection of capitularies, that of Ansegisus, two

books out of four are devoted to ecclesiastical capitularies.

The law under the Frank monarchy.

What, then, was the private and criminal law of this Frankish monarchy

which had come to embrace so many different races? The men of Roman

descent continued under the Roman law, and the conquerors could not hope

to impose their customs upon them. The authorized expression of the

Roman law was henceforth to be found in the _Lex romana Wisigothorum_ or

_Breviarium Alarici_, drawn up by order of Alaric II. in 506. It is an

abridgment of the codes, of that of Theodosius especially, and of

certain of the writings of the jurists included under the Law of

Citations. As to the barbarians, they had hitherto had nothing but

customs, and these customs, of which the type nearest to the original is

to be found in the oldest text of the _Lex Salica_, were nothing more

than a series of tariffs of compensations, that is to say, sums of money

due to the injured party or his family in case of crimes committed

against individuals, for which crimes these compensations were the only

penalty. They also introduced a barbarous system of trial, that by

compurgation, i.e. exculpation by the oath of the defendant supported by

a certain number of _cojurantes_, and that by ordeal, later called

_judicium Dei_. In each new kingdom the barbarians naturally kept their

own laws, and when these men of different races all became subject to

the Frankish monarchy, there evolved itself a system (called the

_personnalite des lois_) by which every subject had, in principle, the

right to be tried by the law of the race to which he belonged by birth

(or sometimes for some other reason, such as emancipation or marriage).

When the two adversaries were of different race, it was the law of the

defendant which had to be applied. The customs of the barbarians had

been drawn up in Latin. Sometimes, as in the case of the first text of

the Salic law, the system on which they were compiled is not exactly

known; but it was generally done under the royal authority. At this

period only these written documents bear the name of "law" (_leges

romanorum_; _leges barbarorum_), and at least the tacit consent of the

people seems to have been required for these collections of laws, in

accordance with an axiom laid down in a later capitulary; _lex fit

consensu populi et constitutione regis_. It is noteworthy, too, that in

the process of being drawn up in Latin, most of the _leges barbarorum_

were very much Romanized.

In the midst of this diversity, a certain number of causes tended to

produce a partial unity. The capitularies, which had in themselves the

force of law, when there was no question of modifying the _leges_,

constituted a legislation which was the same for all; often they

inflicted corporal punishment for grave offences, which applied to all

subjects without distinction. Usage and individual convenience led to

the same result. The Gallo-Romans, and even the Church itself, to a

certain extent, adopted the methods of trial introduced by the Germans,

as was likely in a country relapsing into barbarism. On the other hand,

written acts became prevalent among the barbarians, and at the same time

they assimilated a certain amount of Roman law; for these acts continued

to be drawn up in Latin, after Roman models, which were in most cases

simply misinterpreted owing to the general ignorance. The type is

preserved for us in those collections of _Formulae_, of which complete

and scientific editions have been published by Eugene de Roziere and

Carl Zeumer. During this period, too, the Gallican Church adopted the

collection of councils and decretals, called later the _Codex canonum

ecclesiae Gallicanae_, which she continued to preserve. This collection

was that of Dionysius Exiguus, which was sent to Charlemagne in 774 by

Pope Adrian I. But in the course of the 9th century apocryphal

collections were also formed in the Gallican Church: the False

Capitularies of Benedictus Levita, and the False Decretals of Isidorus

Mercator (see DECRETALS).

All the subjects of the Frankish monarchy were not of equal status.

There was, strictly speaking, no nobility, both the Roman and the

Germanic nobility having died out; but slavery continued to exist. The

Church, however, was preparing the transformation of the slave into the

serf, by giving force and validity to their marriages, in cases, at

least, when the master had approved of them, and by forbidding the

latter unjustly to seize the slave's _peculium_. But between the free

man (_ingenuus_) and the slave lay a number of persons of intermediate

status; they possessed legal personality but were subject to

incapacities of various kinds, and had to perform various duties towards

other men. There was, to begin with, the Roman colonist (_colonus_), a

class as to the origin of which there is still a controversy, and of

which there is no clear mention in the laws before the 4th century; they

and their children after them were attached perpetually to a certain

piece of land, which they were allowed to cultivate on payment of a

rent. There were, further, the _liti_ (_litus_ or _lidus_), a similar

class of Germanic origin; also the greater number of the freedmen or

descendants of freedmen. Many free men who had fled to the great

landowners for protection took, by arrangement or by custom, a similar

position. Under the Merovingian regime, and especially under the

Carolingians, the occupation of the land tended to assume the character

of tenure; but free ownership of land continued to exist under the name

of _alod_ (_alodis_), and there is even evidence for the existence of

this in the form of small properties, held by free men; the capitularies

contain numerous complaints and threats against the counts, who

endeavoured by the abuse of their power to obtain the surrender of these

properties.

Anarchy and feudal origins.

_Period of Anarchy and the Rise of Feudalism._--The 10th and 11th

centuries were a period of profound anarchy, during which feudalism was

free to develop itself and to take definitive shape. At that time the

French people may be said to have lived without laws, without even fixed

customs and without government. The legislative power was no longer

exercised, for the last Carolingian capitularies date from the year 884,

and the first laws of the Capetian kings (if they may be called laws) do

not appear till during the 12th century. During this period the old

capitularies and _leges_ fell into disuse and in their place territorial

customs tended to grow up, their main constituents being furnished by

the law of former times, but which were at the outset ill-defined and

strictly local. As to the government, if the part played by the Church

be excepted, we shall see that it could be nothing but the application

of brute force. In this anarchy, as always happens under similar

conditions, men drew together and formed themselves into groups for

mutual defence. A nucleus was formed which was to become the new social

unit, that is to say, the feudal group. Of this the centre was a chief,

around whom gathered men capable of bearing arms, who commended

themselves to him according to the old form of vassalage, _per manus_.

They owed him fidelity and assistance, the support of their arms but not

of their purse, save in quite exceptional cases; while he owed them

protection. Some of them lived in his castle or fortified house,

receiving their equipment only and eating at his table. Others received

lands from him, which were, or later became, fiefs, on which they lived

_casati_. The name fief, _feudum_, does not appear, however, till

towards the end of this period; these lands are frequently called

_beneficia_ as before; the term most in use at first, in many parts, is

_casamentum_. The fief, moreover, was generally held for life and did

not become generally hereditary till the second half of the 11th

century. The lands kept by the chief and those which he granted to his

men were for the most part rented from him, or from them, for a certain

amount in money or in kind. All these conditions had already existed

previously in much the same form; but the new development is that the

chief was no longer, as before, merely an intermediary between his men

and the royal power. The group had become in effect independent, so

organized as to be socially and politically self-sufficient. It

constituted a small army, led, naturally, by the chief, and composed of

his feudatories, supplemented in case of need by the _rustici_. It also

formed an assembly in which common interests were discussed, the lord,

according to custom, being bound to consult his feudatories and they to

advise him to the best of their power. It also formed a court of

justice, in which the feudatories gave judgment under the presidency of

their lord; and all of them claimed to be subject only to the

jurisdiction of this tribunal composed of their peers. Generally they

also judged the villeins (_villani_) and the serfs dependent on the

group, except in cases where the latter obtained as a favour judges of

their own status, which was, however, at that time a very rare

occurrence.

Under these conditions a nobility was formed, those men becoming nobles

who were able to devote themselves to the profession of arms and were

either chiefs or soldiers in one of the groups which have just been

described. The term designating a noble, _miles_, corresponds also to

that of knight (Fr. _chevalier_, Low Lat. _caballerius_), for the reason

that chivalry, of which the origins are uncertain, represents

essentially the technical skill and professional duties of this military

class. Every noble was destined on coming of age to become a knight, and

the knight equally as a matter of course received a fief, if he had not

one already by hereditary title. This nobility, moreover, was not a

caste but could be indefinitely recruited by the granting of fiefs and

admission to knighthood (see KNIGHTHOOD AND CHIVALRY).

Private war.

The state of anarchy was by now so far advanced that war became an

individual right, and the custom of private war arose. Every man had in

principle the right of making war to defend his rights or to avenge his

wrongs. Later on, doubtless, in the 13th century, this was a privilege

of the noble (_gentilhomme_); but the texts defining the limits which

the Church endeavoured to set to this abuse, namely, the Peace of God

and the Truce of God, show that this was at the outset a power possessed

by men of all classes. Even a man who had appeared in a court of law and

received judgment had the choice of refusing to accept the judgment and

of making war instead. Justice, moreover, with its frequent employment

of trial by combat, did not essentially differ from private war.

It is unnecessary to go further and to affirm, with certain historians

of our time, for example Guilhermoz and See, that the only free men at

that time, besides the clergy, were the nobles, all the rest being

serfs. There are many indications which lead us to assume, not only in

the towns but even in the country districts, the existence of a class of

men of free status who were not _milites_, the class later known in the

13th century as _vilains_, _hommes de poeste_, and, later, _roturiers_.

The fact more probably was that only the nobles and ecclesiastics were

exempt from the exactions of the feudal lords; while from all the others

the seigneurs could at pleasure levy the _taille_ (a direct and

arbitrary tax), and those innumerable rights then called

_consuetudines_. Free ownership, the _allodium_, even under the form of

small freeholds, still existed by way of exception in many parts.

Had, then, the main public authority disappeared? This is practically

the contention of certain writers, who, like M. See, maintain that real

property, the possession of a domain, conferred on the big landed

proprietor all rights of taxation, command and coercion over the

inhabitants of his domain, who, according to this view, were always

serfs. But this is an exaggeration of the thesis upheld by old French

authors, who saw in feudalism, though in a different sense, a confusion

of property with sovereignty. It appears that in this state of political

disintegration each part of the country which had a homogeneous

character tended to form itself into a higher unit. In this unit there

arose a powerful lord, generally a duke, a count, or a viscount, who

sometimes came to be called the _capitalis dominus_. He was either a

former official of the monarchy, whose function had become hereditary,

or a usurper who had formed himself on this model. He laid claim to an

authority other than that conferred by the possession of real property.

He still claimed to exercise over the whole of his former district

certain rights, which we see him sometimes surrendering for the benefit

of churches or monasteries. His court of justice was held in the highest

honour, and to it were referred the most important affairs. But in this

district there were generally a number of more or less powerful lords,

who as a rule had as yet no particular feudal title and are often given

the name of _principes_. Often, but not always, they had commended

themselves to this duke or count by doing homage.

The royal power.

On the other hand, the royal power continued to exist, being recognized

by a considerable part of old Gaul, the _regnum Francorum_. But under

the last of the Carolingians it had in fact become elective, as is shown

by the elections of Odo and Robert before that of Hugh Capet. The

electors were the chief lords and prelates of the _regnum Francorum_.

But following a clever policy, each king during his lifetime took as

partner of his kingdom his eldest son and consecrated and crowned him in

advance, so that the first of the Capetians revived the principle of

heredity in favour of the eldest son, while establishing the hereditary

indivisibility of the kingdom. This custom was recognized at the

accession of Louis the Fat, but the authority of the king was very weak,

being merely a vague allegiance. His only real authority lay where his

own possessions were, or where there had not arisen a duke, a count, or

lord of equal rank with them. He maintained, however, a general right of

administering justice, a _curia_, the jurisdiction of which seems to

have been universal. It is true that the parties in a suit had to submit

themselves to it voluntarily, and could accept or reject the judgment

given, but this was at that time the general rule. The king dispensed

justice surrounded by the officers of his household (_domestici_), who

thus formed his council; but these were not the only ones to assist him,

whether in court or council. Periodically, at the great yearly

festivals, he called together the chief lords and prelates of his

kingdom, thus carrying on the tradition of the Carolingian _placita_ or

_conventus_; but little by little, with the appropriation of the

_honores_, the character of the gathering changed; it was no longer an

assembly of officials but of independent lords. This was now called the

_curia regis_.

The Church.

While the power of the State was almost disappearing, that of the

Church, apart from the particular acts of violence of which she was

often the victim, continued to grow. Her jurisdiction gained ground,

since her procedure was reasonable and comparatively scientific (except

that she admitted to a certain extent compurgation by oath and the

_judicia Dei_, with the exception of trial by combat). Not only was the

privilege of clergy, by which accused clerks were brought under her

jurisdiction, almost absolute, but she had cognizance of a number of

causes in which laymen only were concerned, marriage and everything

nearly or remotely affecting it, wills, crimes and offences against

religion; and even contracts, when the two parties wished it or when the

agreement was made on oath, came within her competence. Such, then, were

the ecclesiastical or Christian courts (_cours d'eglise, course de

chretiente_). The Church, moreover, remained in close connexion with the

crown, the king preserving a quasi-ecclesiastical character, while the

royal prerogatives with regard to the election of bishops were

maintained more successfully than the rights of the crown, though in

many of the great fiefs they none the less passed to the count or the

duke. It was at this time too that the Church tried to break the last

ties which still kept her more or less dependent on the civil power;

this was the true import of the Investiture Contest (see INVESTITURE,

and CHURCH HISTORY), though this was not very acute in France.

The feudal monarchy.

Roman law.

The customs.

The period of the true feudal monarchy is embraced by the 12th and 13th

centuries, that is to say, it was at this time that the crown again

assumed real strength and authority; but so far it had no organs and

instruments save those which were furnished by feudalism, now organized

under a regular hierarchy, of which the king was the head, the

"sovereign enfeoffer of the kingdom" (_souverain fieffeux du royaume_),

as he came later on to be called. This new position of affairs was the

result of three great factors: the revival of Roman Law, the final

organization of feudalism and the rise of the privileged towns. The

revival of Roman law began in France and Italy in the second half of the

11th century, developing with extraordinary brilliance in the latter

country at the university of Bologna, which was destined for a long time

to dominate Europe. Roman law spread rapidly in the French schools and

universities, except that of Paris, which was closed to it by the

papacy; and the influence of this study was so great that it transformed

society. On the one hand it contributed largely to the reconstitution of

the royal power, modelling the rights of the king on those of the Roman

emperor. On the other hand it wrought a no less profound change in

private law. From this time dates the division of old France into the

_Pays de droit ecrit_, in which Roman law, under the form in which it

was codified by Justinian, was received as the ordinary law; and the

_Pays de coutume_, where it played only a secondary part, being

generally valid only as _ratio scripta_ and not as _lex scripta_. In

this period the customs also took definitive form, and over and above

the local customs properly so called there were formed customs known as

_general_, which held good through a whole province or _bailliage_, and

were based on the jurisprudence of the higher jurisdictions.

Final organization of feudalism.

Feudal character of justice.

The final organization of feudalism resulted from the struggle for

organization which was proceeding in each district where the more

powerful lords compelled the others to do them homage and become their

vassals; the _capitalis dominus_ had beneath him a whole hierarchy, and

was himself a part of the feudal system of France (see FEUDALISM).

Doubtless in the case of lords like the dukes of Brittany and Burgundy,

the king could not actually demand the strict fulfilment of the feudal

obligations; but the principle was established. The question now arises,

did free and absolute property, the _allodium_, entirely disappear in

this process, and were all lands held as tenures? It continued to exist,

by way of exception, in most districts, unchanged save in the burden of

proof of ownership, with which, according to the customs, sometimes the

lord and sometimes the holder of the land was held charged. In one

respect, however, namely in the administration of justice, the feudal

hierarchy had absolute sway. Towards the end of the 13th century

Beaumanoir clearly laid down this principle: "All secular jurisdiction

in France is held from the king as a fief or an _arriere-fief_."

Henceforth it could also be said that "All justice emanates from the

king." The law concerning fiefs became settled also from another point

of view, the fief becoming patrimonial; that is to say, not only

hereditary, but freely alienable by the vassal, subject in both cases to

certain rights of transfer due to the lord, which were at first fixed by

agreement and later by custom. The most salient features of feudal

succession were the right of primogeniture and the preference given to

heirs-male; but from the 13th century onwards the right of

primogeniture, which had at first involved the total exclusion of the

younger members of a family, tended to be modified, except in the case

of the chief lords, the eldest son obtaining the preponderant share or

_preciput_. Non-noble (_roturier_) tenancies also became patrimonial in

similar circumstances, except that in their case there was no right of

primogeniture nor any privilege of males. The tenure of serfs did not

become alienable, and only became hereditary by certain devices.

Rise of the privileged towns.

Feudal society next saw the rise of a new element within it: the

privileged towns. At this time many towns acquired privileges, the

movement beginning towards the end of the 11th century; they were

sanctioned by a formal concession from the lord to whom the town was

subject, the concession being embodied in a charter or in a record of

customs (_coutume_). Some towns won for themselves true political

rights, for instance the right of self-administration, rights of justice

over the inhabitants, the right of not being taxed except by their own

consent, of maintaining an armed force, and of controlling it

themselves. Others only obtained civil rights, e.g. guarantees against

the arbitrary rights of justice and taxation of the lord or his provost.

The chief forms of municipal organization at this time were the _commune

juree_ of the north and east, and the _consulat_, which came from Italy

and penetrated as far as Auvergne and Limousin. The towns with important

privileges formed in feudal society as it were a new class of lordships;

but their lords, that is to say their burgesses, were inspired by quite

a new spirit. The crown courted their support, taking them under its

protection, and championing the causes in which they were interested

(see COMMUNE). Finally, it is in this period, under Philip Augustus,

that the great fiefs began to be effectually reannexed to the crown, a

process which, continued by the kings up to the end of the _ancien

regime_, refounded for their profit the territorial sovereignty of

France.

Great officers of the crown and peers of France.

The crown maintained the machinery of feudalism, the chief central

instruments of which were the great officers of the crown, the

seneschal, butler, constable and chancellor, who were to become

irremovable officials, those at least who survived. But this period saw

the rise of a special college of dignitaries, that of the Twelve Peers

of France, consisting of six laymen and six ecclesiastics, which took

definitive shape at the beginning of the 13th century. We cannot yet

discern with any certainty by what process it was formed, why those six

prelates and those six great feudatories in particular were selected

rather than others equally eligible. But there is no doubt that we have

here a result of that process of feudal organization mentioned above;

the formation of a similar assembly of twelve peers occurs also in a

certain number of the great fiefs. Besides the part which they played at

the consecration of kings, the peers of France formed a court in which

they judged one another under the presidency of the king, their

overlord, according to feudal custom. But the _cour des pairs_ in this

sense was not separate from the _curia regis_, and later from the

parlement of Paris, of which the peers of France were by right members.

From this time, too, dates another important institution, that of the

_maitres des requetes_.

Growth of the royal power.

The legislative power of the crown again began to be exercised during

the 12th century, and in the 13th century had full authority over all

the territories subject to the crown. Beaumanoir has a very interesting

theory on this subject. The right of war tends to regain its natural

equilibrium, the royal power following the Church in the endeavour to

check private wars. Hence arose the _quarantaine le roi_, due to Philip

Augustus or Saint Louis, by which those relatives of the parties to a

quarrel who had not been present at the quarrel were rendered immune

from attack for forty days after it; and above all the _assurements_

imposed by the king or lord; on these points too Beaumanoir has an

interesting theory. The rule was, moreover, already in force by which

private wars had to cease during the time that the king was engaged in a

foreign war. But the most appreciable progress took place in the

administrative and judicial institutions. Under Philip Augustus arose

the royal _baillis_ (see BAILIFF: section _Bailli_), and seneschals

(q.v.), who were the representatives of the king in the provinces, and

superior judges. At the same time the form of the feudal courts tended

to change, as they began more and more to be influenced by the

Romano-canonical law. Saint Louis had striven to abolish trial by

combat, and the Church had condemned other forms of ordeal, the

_purgatio vulgaris_. In most parts of the country the feudal lords began

to give place in the courts of law to the provosts (_prevots_) and

_baillis_ of the lords or of the crown, who were the judges, having as

their councillors the _avocats_ (advocates) and _procureurs_

(procurators) of the assize. The feudal courts, which were founded

solely on the relations of homage and tenure, before which the vassals

and tenants as such appeared, disappeared in part from the 13th century

on. Of the seigniorial jurisdictions there soon remained only the

_hautes_ or _basses justices_ (in the 14th century arose an intermediate

grade, the _moyenne justice_), all of which were considered to be

concessions of the royal power, and so delegations of the public

authority. As a result of the application of Roman and canon law, there

arose the _appeal_ strictly so called, both in the class of royal and of

seigniorial jurisdictions, the case in the latter instance going finally

before a royal court, from which henceforth there was no appeal. In the

13th century too appeared the theory of crown cases (_cas royaux_),

cases which the lords became incompetent to try and which were reserved

for the royal court. Finally, the _curia regis_ was gradually

transformed into a regular court of justice, the _Parlement_ (q.v.), as

it was already called in the second half of the 13th century. At this

time the king no longer appeared in it regularly, and before each

session (for it was not yet a permanent body) a list of properly

qualified men was drawn up in advance to form the parlement, only those

whose names were on the list being capable of sitting in it. Its main

function had come to be that of a final court of appeal. At the various

sessions, which were regularly held at Paris, appeared the _baillis_ and

seneschals, who were called upon to answer for the cases they had judged

and also for their administration. The accounts were received by members

of the parlement at the Temple, and this was the origin of the Cour or

Chambre des Comptes.

Nobles, commons and the Church in the 13th century.

At the end of this period the nobility became an exclusive class. It

became an established rule that a man had to be noble in order to be

made a knight, and even in order to acquire a fief; but in this latter

respect the king made exceptions in the case of _roturiers_, who were

licensed to take up fiefs, subject to a payment known as the _droits de

franc-fief_. The _roturiers_, or villeins who were not in a state of

thraldom, were already a numerous class not only in the towns but in the

country. The Church maintained her privileges; a few attempts only were

made to restrain the abuse, not the extent, of her jurisdiction. This

jurisdiction was, during the 12th century, to a certain extent

regularized, the bishop nominating a special functionary to hold his

court; this was the _officialis_ (Fr. _official_), whence the name of

_officialite_ later applied in France to the ecclesiastical

jurisdictions. On one point, however, her former rights were diminished.

She preserved the right of freely acquiring personal and real property,

but though she could still acquire feudal tenures she could not keep

them; the customs decided that she must _vider les mains_, that is,

alienate the property again within a year and a day. The reason for this

new rule was that the Church, the ecclesiastical establishment, is a

proprietor who does not die and in principle does not surrender her

property; consequently, the lords had no longer the right of exacting

the transfer duties on those tenures which she acquired. It was

possible, however, to compromise and allow the Church to keep the tenure

on condition of the consent not only of the lord directly concerned, but

of all the higher lords up to the _capitalis dominus_; it goes without

saying that this concession was only obtained by the payment of

pecuniary compensations, the chief of which was the _droit

d'amortissement_, paid to these different lords. In this period the form

of the episcopal elections underwent a change, the electoral college

coming to consist only of the canons composing the chapter of the

cathedral church. But except for the official candidatures, which were

abused by the kings and great lords, the elections were regular; the

Pragmatic Sanction, attributed to Saint Louis, which implies the

contrary, is nowadays considered apocryphal by the best critics.

Changes in criminal law.

Finally, it must be added that during the 13th century criminal law was

profoundly modified. Under the influence of Roman law a system of

arbitrary penalties replaced those laid down by the customs, which had

usually been fixed and cruel. The criminal procedure of the feudal

courts had been based on the right of accusation vested only in the

person wronged and his relations; for this was substituted the

inquisitorial procedure (_processus per inquisitionem_), which had

developed in the canon law at the very end of the 12th century, and was

to become the _procedure a l'extraordinaire_ of the _ancien regime_,

which was conducted in secret and without free defence and debate. Of

this procedure torture came to be an ordinary and regular part.

The customs.

The customs, which at that time contained almost the whole of the law

for a great part of France, were not fixed by being written down. In

that part of France which was subject to customary law (_la France

coutumiere_) they were defined when necessary by the verdict of a jury

of practitioners in what was called the _enquete par turbes_; some of

them, however, were, in part at least, authentically recorded in

seigniorial charters, _chartes de ville_ or _chartes de coutume_. Their

rules were also recorded by experts in private works or collections

called _livres coutumiers_, or simply _coutumiers_ (customaries). The

most notable of these are _Les Coutumes de Beauvoisis_ of Philippe de

Beaumanoir, which Montesquieu justly quotes as throwing light on those

times; also the _Tres ancienne coutume de Normandie_ and the _Grand

Coutumier de Normandie_; the _Conseil a un ami of Pierre des Fontaines_,

the _Etablissements de Saint Louis_; the _Livre de jostice et de plet_.

At the same time the clerks of important judges began to collect in

registers notable decisions; it is in this way that we have preserved to

us the old decisions of the exchequer of Normandy, and the _Olim_

registers of the parlement of Paris.

_The Limited Monarchy._--The 14th and 15th centuries were the age of the

limited monarchy. Feudal institutions kept their political importance;

but side by side with them arose others of which the object was the

direct exercise of the royal authority; others also arose from the very

heart of feudalism, but at the same time transformed its laws in order

to adapt them to the new needs of the crown. In this period certain

rules for the succession to the throne were fixed by precedents: the

exclusion of women and of male descendants in the female line, and the

principle that a king could not by an act of will change the succession

of the crown. The old _curia regis_ disappeared and was replaced by the

parlement as to its judicial functions, while to fulfil its deliberative

functions there was formed a new body, the royal council (_conseil du

roi_), an administrative and governing council, which was in no way of a

feudal character. The number of its members was at first small, but they

tended to increase; soon the brevet of _conseiller du roi en ses

conseils_ was given to numerous representatives of the clergy and

nobility, the great officers of the crown becoming members by right.

Side by side with these officials, whose power was then at its height,

there were gradually evolved more subservient ministers who could be

dispensed with at will; the _secretaires des commandements du roi_ of

the 15th century, who in the 16th century developed into the

_secretaires d'etat_, and were themselves descended from the _clercs du

secret_ and _secretaires des finances_ of the 14th century. The College

of the Twelve Peers of France had not its full numbers at the end of the

13th century; the six ecclesiastical peerages existed and continued to

exist to the end, together with the archbishopric and bishoprics to

which they were attached, not being suppressed; but several of the great

fiefs to which six lay peerages had been attached had been annexed to

the crown. To fill these vacancies, Philip the Fair raised the duchies

of Brittany and Anjou and the countship of Artois to the rank of

peerages of France. This really amounted to changing the nature of the

institution; for the new peers held their rank merely at the king's

will, though the rank continued to belong to a great barony and to be

handed down with it. Before long peers began to be created when there

were no gaps in the ranks of the College, and there was a constant

increase in the numbers of the lay peers.

States general and provincial estates.

At the beginning of the 14th century appeared the states general (_etats

generaux_), which were often convoked, though not at fixed intervals,

throughout the whole of the 14th century and the greater part of the

15th. Their power reached its height at a critical moment of the Hundred

Years' War during the reign of King John. At the same time there arose

side by side with them, and from the same causes, the provincial

estates, which were in miniature for each province what the states

general were for the whole kingdom. Of these provincial assemblies some

were founded in one or other of the great fiefs, being convoked by the

duke or count under the pressure of the same needs which led the king to

convoke the states general; others, in provinces which had already been

annexed to the crown, probably had their origin in the councils summoned

by the _bailli_ or seneschal to aid him in his administration. Later it

became a privilege for a province to have its own assembly; those which

did so were never of right subject to the royal _taille_, and kept, at

least formally, the right of sanctioning, by means of the assembly, the

subsidies which took its place. Hence it became the endeavour of the

crown to suppress these provincial assemblies, which in the 14th century

were to be found everywhere; from the outset of the 15th century they

began to disappear in central France.

Royal taxation.

The most characteristic feature of this period was the institution of

universal taxation by the crown. So far the king's sole revenues were

those which he exacted, in his capacity of feudal lord, wherever another

lord did not intervene between him and the inhabitants, in addition to

the income arising from certain crown rights which he had preserved or

regained. But these revenues, known later as the income of the royal

domain and later still as the _finances ordinaires_, became insufficient

in proportion as the royal power increased; it became a necessity for

the monarch to be able to levy imposts throughout the whole extent of

the provinces annexed to the crown, even upon the subjects of the

different lords. This he could only do by means of the co-operation of

those lords, lay and ecclesiastical, who alone had the right of taxing

their subjects; the co-operation of the privileged towns, which had the

right to tax themselves, was also necessary. It was in order to obtain

this consent that the states general, in most cases, and the provincial

assemblies, in all cases, were convoked. In some cases, however, the

king adopted different methods; for instance, he sometimes utilized the

principle of the feudal aids. In cases where his vassals owed him, as

overlord, a pecuniary aid, he substituted for the sum paid directly by

his vassals a tax levied by his own authority on their subjects. It is

in this way that for thirty years the necessary sums were raised,

without any vote from the states general, to pay the ransom of King

John. But in principle the taxes were in the 14th century sanctioned by

the states general. Whatever form they took, they were given the generic

name of Aids or _auxilia_, and were considered as occasional and

extraordinary subsidies, the king being obliged in principle to "live of

his own" (_vivre de son domaine_). Certain aids, it is true, tended to

become permanent under the reign of Charles VI.; but the taxes subject

to the consent of the states general were at first the sole resource of

Charles VII. In the second half of his reign the two chief taxes became

permanent: in 1435 that of the aids (a tax on the sale of articles of

consumption, especially on wine), with the formal consent of the states

general, and that of the _taille_ in 1439. In the latter case the

consent of the states general was not given; but only the nobility

protested, for at the same time as the royal _taille_ became permanent

the seigniorial _taille_ was suppressed. These imposts were increased,

on the royal authority, by Louis XI. After his death the states general,

which met at Tours in 1484, endeavoured to re-establish the periodical

vote of the tax, and only granted it for two years, reducing it to the

sum which it had reached at the death of Charles VII. But the promise

that they would again be convoked before the expiry of two years was not

kept. These imposts and that of the _gabelle_ were henceforth permanent.

Together with the taxes there was evolved the system of their

administration. Their main outlines were laid down by the states general

in the reign of King John, in 1355 and the following years. For the

administration of the subsidies which they granted, they nominated from

among their own numbers _surintendants generaux_ or _generaux des

finances_, and further, for each diocese or equivalent district, _elus_.

Both had not only the active administration but also judicial rights,

the latter constituting courts of the first instance and the former

courts of final appeal. After 1360 the crown again adopted this

organization, which had before been only temporary; but henceforth

_generaux_ and _elus_ were nominated by the king. The _elus_, or

_officiers des elections_, only existed in districts which were subject

to the royal _taille_; hence the division, so important in old France,

into _pays d'elections_ and _pays d'etats_. The _elus_ kept both

administration and jurisdiction; but in the higher stage a

differentiation was made: the _generaux des finances_, who numbered

four, kept the administration, while their jurisdiction as a court of

final appeal was handed over to another body, the _cour des aides_,

which had already been founded at the end of the 14th century. Besides

the four _generaux des finances_, who administered the taxation, there

were four Treasurers of France (_tresoriers de France_), who

administered the royal domain; and these eight officials together formed

in the 15th century a kind of ministry of finance to the monarchy.

The army.

The army also was organized. On the one hand, the military service

attached to the fiefs was transformed for the profit of the king, who

alone had the right of making war: it became the _arriere-ban_, a term

which had formerly applied to the _levee en masse_ of all the

inhabitants in times of national danger. Before the 14th century the

king had only had the power of calling upon his own immediate vassals

for service. Henceforth all possessors of fiefs owed him, whether within

the kingdom or on the frontiers, military service without pay and at

their own expense. This was for long an important resource for the king.

But Charles VII. organized an army on another footing. It comprised the

_francs-archers_ furnished by the parishes, a militia which was only

summoned in case of war, but in time of peace had to practise archery,

and companies of _gendarmerie_ or heavy cavalry, forming a permanent

establishment, which were called _compagnies d'ordonnance_. It was

chiefly to provide for the expense of the first nucleus of a permanent

army that the _taille_ itself had been made permanent.

The new army led to the institution of the governors of provinces, who

were to command the troops quartered there. At first they were only

appointed for the frontiers and fortified places, but later the kingdom

was divided into _gouvernements generaux_. There were at first twelve of

these, which were called in the middle of the 16th century the _douze

anciens gouvernements_. Although, strictly speaking, they had only

military powers, the governors, always chosen from among the great

lords, became in the provinces the direct representatives of the king

and caused the _baillis_ and seneschals to take a secondary place.

The law courts.

The courts of law continued to develop on the lines already laid down.

The parlement, which had come to be a judicial committee nominated every

year, but always consisting in fact of the same persons, changed in the

course of the 14th century into a body of magistrates who were permanent

but as yet subject to removal. During this period were evolved its

organization and definitive features (see PARLEMENT). The provincial

parlements had arisen after and in imitation of that of Paris, and had

for the most part taken the place of some superior jurisdiction which

had formerly existed in the same district when it had been independent

(like Provence) or had formed one of the great fiefs (like Normandy or

Burgundy). It was during this period also that the parlements acquired

the right of opposing the registration, that is to say, the promulgation

of laws, of revising them, and of making representations

(_remontrances_) to the king when they refused the registration, giving

the reasons for such refusal. The other royal jurisdictions were

completed (see BAILIFF, CHATELET). Besides them arose another of great

importance, which was of military origin, but came to include all

citizens under its sway. These were the provosts of the marshals of

France (_prevots des marechaux de France_), who were officers of the

_Marechaussee_ (the gendarmerie of the time); they exercised criminal

jurisdiction without appeal in the case of crimes committed by vagabonds

and fugitives from justice, this class being called their _gibier_

(game), and of a number of crimes of violence, whatever the rank of the

offender. Further, another class of officers was created in connexion

with the law courts: the "king's men" (_gens du roi_), the _procureurs_

and _avocats du roi_, who were at first simply those lawyers who

represented the king in the law courts, or pleaded for him when he had

some interest to follow up or to defend. Later they became officers of

the crown. In the case of the _procureurs du roi_ this development took

place in the first half of the 14th century. Their duty was not only to

represent the king in the law courts, whether as plaintiff or defendant,

but also to take care that in each case the law was applied, and to

demand its application. From this time on the _procureurs du roi_ had

full control over matters concerning the public interest, and especially

over public prosecution. In this period, too, appeared what was

afterwards called _justice retenue_, that is to say, the justice which

the king administered, or was supposed to administer, in person. It was

based on the idea that, since all justice and all judicial power reside

in the king, he could not deprive himself of them by delegating their

exercise to his officers and to the feudal lords. Consequently he could,

if he thought fit, take the place of the judges and call up a case

before his own council. He could reverse even the decisions of the

courts of final appeal, and in some cases used this means of appealing

against the decrees of the parlements (_proposition d'erreur, requete

civile, pourvoi en revision_). In these cases the king was supposed to

judge in person; in reality they were examined by the _maitres des

requetes_ and submitted to the royal council (_conseil du roi_), at

which the king was always supposed to be present and which had in itself

no power of giving a decision. For this purpose there was soon formed a

special committee of the council, which was called the _conseil prive_

or _de justice_. At the end of the 15th century, Charles VIII., in order

to relieve the council of some of its functions, created a new final

court, the _grand conseil_, to deal with a number of these cases. But

before long it again became the custom to appeal to the _conseil du

roi_, so that the _grand conseil_ became almost useless. The king

frequently, by means of _lettres de justice_, intervened in the

procedure of the courts, by granting _benefices_, by which rules which

were too severe were modified, and faculties or facilities for

overcoming difficulties arising from flaws in contracts or judgments,

cases at that time not covered by the common law. By _lettres de grace_

he granted reprieve or pardon in individual cases. The most extreme form

of intervention by the king was made by means of _lettres de cachet_

(q.v.), which ordered a subject to go without trial into a state prison

or into exile.

The Church.

The condition of the Church changed greatly during this period. The

jurisdiction of the _officialites_ was very much reduced, even over the

clergy. They ceased to be competent to judge actions concerning the

possession of real property, in which the clergy were defendants. In

criminal law the theory of the _cas privilegie_, which appears in the

14th century, enabled the royal judges to take action against and judge

the clergy for all serious crimes, though without the power of

inflicting any penalties but arbitrary fines, the ecclesiastical judge

remaining competent, in accordance with the privileges of clergy, to try

the offender for the same crime as what was technically called a _delit

commun_. The development of jurisprudence gradually removed from the

_officialites_ causes of a purely secular character in which laymen only

were concerned, such as wills and contracts; and in matrimonial cases

their jurisdiction was limited to those in which the _foedus matrimonii_

was in question. For the acquisition of real property by ecclesiastical

establishments the consent of the king to the amortizement was always

necessary, even in the case of allodial lands; and if it was a case of

feudal tenures the king and the direct overlords alone kept their

rights, the intermediate lords being left out of the question.

Papal encroachments.

As regards the conferring of ecclesiastical benefices, from the 14th

century onwards the papacy encroached more and more upon the rights of

the bishops, in whose gift the inferior benefices generally were, and of

the electors, who usually conferred the superior benefices; at the same

time it exacted from newly appointed incumbents heavy dues, which were

included under the generic name of annates (q.v.). During the Great

Schism of the Western Church, these abuses became more and more crying,

until by a series of edicts, promulgated with the consent and advice of

the parlement and the clergy, the Gallican Church was restored to the

possession of its former liberties, under the royal authority. Thus

France was ready to accept the decrees of reform issued by the council

of Basel (q.v.), which she did, with a few modifications, in the

Pragmatic Sanction of Charles VII., adopted after a solemn assembly of

the clergy and nobles at Bourges and registered by the parlement of

Paris in 1438. It suppressed the annates and most of the means by which

the popes disposed of the inferior benefices: the reservations and the

_gratiae expectativae_. For the choice of bishops and abbots, it

restored election by the chapters and convents. The Pragmatic Sanction,

however, was never recognized by the papacy, nor was it consistently and

strictly applied by the royal power. The transformation of the civil and

criminal law under the influence of Roman and canon law had become more

and more marked. The production of the _coutumiers_, or _livres de

pratiques_, also continued. The chief of them were: in the 14th century,

the _Stylus Vetus Curiae Parlamenti_ of Guillaume de Breuil; the _Tres

ancienne coutume de Bretagne_; the _Grand Coutumier de France_, or

_Coutumier de Charles VI._; the _Somme rural_ of Boutillier; in the 15th

century, for Auvergne, the _Practica forensis_ of Masuer. Charles VII.,

in an article of the Grand Ordonnance of Montil-les-Tours (1453),

ordered the general customs to be officially recorded under the

supervision of the crown. It was an enormous work, which would almost

have transformed them into written laws; but up to the 16th century

little recording was done, the procedure established by the Ordonnance

for the purpose not being very suitable.

Government under the absolute monarchy.

_The Absolute Monarchy._--From the 16th century to the Revolution was

the period of the absolute monarchy, but it can be further divided into

two periods: that of the establishment of this regime, from 1515 to

about 1673; and that of the _ancien regime_ when definitively

established, from 1673 to 1789. The reigns of Francis I. and Henry II.

clearly laid down the principle of the absolute power of the crown and

applied it effectually, as is plainly seen from the temporary

disappearance of the states general, which were not assembled under

these two reigns. There were merely a few assemblies of notables chosen

by the royal power, the most important of which was that of Cognac,

under Francis I., summoned to advise on the non-fulfilment of the treaty

of Madrid. It is true that in the second half of the 16th century the

states general reappeared. They were summoned in 1560 at Orleans, then

in 1561 at Pontoise, and in 1576 and 1588 at Blois. The League even

convoked one, which was held at Paris in 1593. This represented a

crucial and final struggle. Two points were then at issue: firstly,

whether France was to be Protestant or Catholic; secondly, whether she

was to have a limited or an absolute monarchy. The two problems were not

necessarily bound up with one another. For if the Protestants desired

political liberty, many of the Catholics wished for it too, as is proved

by the writings of the time, and even by the fact that the League

summoned the estates. But the states general of the 16th century, in

spite of their good intentions and the great talents which were at their

service, were dominated by religious passions, which made them powerless

for any practical purpose. They only produced a few great ordinances of

reform, which were not well observed. They were, however, to be called

together yet again, as a result of the disturbances which followed the

death of Henry IV.; but their dissensions and powerlessness were again

strikingly exemplified and they did not reappear until 1789. Other

bodies, however, which the royal power had created, were to carry on the

struggle against it. There were the parlements, the political rivals of

the states general. Thanks to the principle according to which no law

came into effect so long as it had not been registered by them, they

had, as we have seen, won for themselves the right of a preliminary

discussion of those laws which were presented to them, and of refusing

registration, explaining their reasons to the king by means of the

_remontrances_. The royal power saw in this merely a concession from

itself, a consultative power, which ought to yield before the royal

will, when the latter was clearly manifested, either by _lettres de

jussion_ or by the actual words and presence of the king, when he came

in person to procure the registration of a law in a so-called _lit de

justice_. But from the 16th century onwards the members of the

parlements claimed, on the strength of a historical theory, to have

inherited the powers of the ancient assemblies (the Merovingian and

Carolingian _placita_ and the _curia regis_), powers which they,

moreover, greatly exaggerated. The successful assertion of this claim

would have made them at once independent of and necessary to the crown.

During the minority of kings, they had possessed, in fact, special

opportunities for asserting their pretensions, particularly when they

had been called upon to intervene in the organization of the regency. It

is on this account that at the beginning of the reign of Louis XIV. the

parlement of Paris wished to take part in the government, and in 1648,

in concert with the other supreme courts of the capital, temporarily

imposed a sort of charter of liberties. But the first Fronde, of which

the parlement was the centre and soul, led to its downfall, which was

completed when later on Louis XIV. became all-powerful. The ordinance of

1667 on civil procedure, and above all a declaration of 1673, ordered

the parlement to register the laws as soon as it received them and

without any modification. It was only after this registration that they

were allowed to draw up remonstrances, which were henceforth futile. The

nobles, as a body, had also become politically impotent. They had been

sorely tried by the wars of religion, and Richelieu, in his struggles

against the governors of the provinces, had crushed their chief leaders.

The second Fronde was their last effort (see FRONDE). At the same time

the central government underwent changes. The great officers of the

crown disappeared one by one. The office of constable of France was

suppressed by purchase during the first half of the 17th century, and of

those in the first rank only the chancellor survived till the

Revolution. But though his title could only be taken from him by

condemnation on a capital charge, the king was able to deprive him of

his functions by taking from him the custody and use of the seal of

France, which were entrusted to a _garde des sceaux_. Apart from the

latter, the king's real ministers were the secretaries of state,

generally four in number, who were always removable and were not chosen

from among the great nobles. For purposes of internal administration,

the provinces were divided among them, each of them corresponding by

despatches with those which were assigned to him. Any other business

(with the exception of legal affairs, which belonged to the chancellor,

and finance, of which we shall speak later) was divided among them

according to convenience. At the end of the 16th century, however, were

evolved two regular departments, those of war and foreign affairs. Under

Francis I. and Henry II., the chief administration of finance underwent

a change; for the four _generaux des finances_, who had become too

powerful, were substituted the _intendants des finances_, one of whom

soon became a chief minister of finance, with the title _surintendant_.

The _generaux des finances_, like the _tresoriers_ de France, became

provincial officials, each at the head of a _generalite_ (a superior

administrative district for purposes of finance); under Henry II. the

two functions were combined and assigned to the _bureaux des finances_.

The fall of Fouquet led to the suppression of the office of

_surintendant_; but soon Colbert again became practically a minister of

finance, under the name of _controleur general des finances_, both title

and office continuing to exist up to the Revolution.

The _conseil du roi_, the origin of which we have described, was an

important organ of the central government, and for a long time included

among its members a large number of representatives of the nobility and

clergy. Besides the councillors of state (_conseillers d'etat_), its

ordinary members, the great officers of the crown and secretaries of

state, princes of the blood and peers of France were members of it by

right. Further, the king was accustomed to grant the brevet of

councillor to a great number of the nobility and clergy, who could be

called upon to sit in the council and give an opinion on matters of

importance. But in the 17th century the council tended to differentiate

its functions, forming three principal sections, one for political, one

for financial, and the third for legal affairs. Under Louis XIV. it took

a definitely professional, administrative and technical character. The

_conseillers a brevet_ were all suppressed in 1673, and the peers of

France ceased to be members of the council. The political council, or

_conseil d'en haut_, had no _ex officio_ members, not even the

chancellor; the secretary of state for foreign affairs, however,

necessarily had entry to it; it also included a small number of persons

chosen by the king and bearing the title of ministers of state

(_ministres d'etat_). The other important sections of the conseil du roi

were the _conseil des finances_, organized after the fall of Fouquet,

and the _conseil des depeches_, in which sat the four secretaries of

state and where everything concerned with internal administration

(except finance) was dealt with, including the legal business connected

with this administration. As to the government and the preparation of

laws, under Louis XIV. and Louis XV., the _conseil du roi_ often passed

into the background, when, as the saying went, a minister who was

projecting some important measure _travaillait seul avec le roi_ (worked

alone with the king), having from the outset gained the king's ear.

Provincial administration.

The chief authority in the provincial administration belonged in the

16th century to the governors of the provinces, though, strictly

speaking, the governor had only military powers in his _gouvernement_;

for, as we have seen, he was the direct representative of the king for

general purposes. But at the end of this century were created the

intendants of the provinces, who, after a period of conflict with the

governors and the parlements, became absolute masters of the

administration in all those provinces which had no provincial estates,

and the instruments of a complete administrative centralization (see

INTENDANT).

The towns.

The towns having a _corps de ville_, that is to say, a municipal

organization, preserved in the 16th century a fairly wide autonomy, and

played an important part in the wars of religion, especially under the

League. But under Louis XIV. their independence rapidly declined. They

were placed under the tutelage of the intendants, whose sanction, or

that of the _conseil du roi_, was necessary for all acts of any

importance. In the closing years of the 17th century, the municipal

officials ceased, even in principle, to be elective. Their functions

ranked as offices which were, like royal offices, saleable and

heritable. The pretext given by the edicts were the intrigues and

dissensions caused by the elections; the real cause was that the

government wanted to sell these offices, which is proved by the fact

that it frequently allowed towns to redeem them and to re-establish the

elections.

Sale of offices.

The sale of royal offices is one of the characteristic features of the

_ancien regime_. It had begun early, and, apparently, with the office of

councillor of the parlement of Paris, when this became permanent, in the

second half of the 14th century. It was first practised by magistrates

who wished to dispose of their office in favour of a successor of their

own choice. The _resignatio in favorem_ of ecclesiastical benefices

served as model, and at first care was taken to conceal the money

transaction between the parties. The crown winked at these resignations

in consideration of a payment in money. But in the 16th century, under

Francis I. at the latest, the crown itself began officially to sell

offices, whether newly created or vacant by the death of their

occupiers, taking a fee from those upon whom they were conferred. Under

Charles IX. the right of resigning _in favorem_ was recognized by law in

the case of royal officials, in return for a payment to the treasury of

a certain proportion of the price. In the case of judicial offices there

was a struggle for at least two centuries between the system of sale and

another, also imitated from canon law, i.e. the election or presentation

of candidates by the legal corporations. The ordinances of the second

half of the 16th century, granted in answer to complaints of the states

general, restored and confirmed the latter system, giving a share in the

presentation to the towns or provincial notables and forbidding sales.

The system of sale, however, triumphed in the end, and, in the case of

judges, had, moreover, a favourable result, assuring to them that

irremovability which Louis XI. had promised in vain; for, under this

system, the king could not reasonably dismiss an official arbitrarily

without refunding the fee which he had paid. On the other hand, it

contributed to the development of the _epices_, or dues paid by

litigants to the judges. The system of sale, and with it irremovability,

was extended to all official functions, even to financial posts. The

process was completed by the recognition of the rights in the sale of

offices as hereditary, i.e. the right of resigning the office on payment

of a fee, either in favour of a competent descendant or of a third

party, passed to the heirs of an official who had died without having

exercised this right himself. It was established under Henry IV. in 1604

by the system called the _Paulette_, in return for the payment by the

official of an annual fee (_droit annuel_) which was definitely fixed at

a hundredth part of the price of the office. Thus these offices, though

the royal nomination was still required as well as the professional

qualifications required by the law, became heritable property in virtue

of the finance attached to them. This led to the formation of a class of

men who, though bound in many ways to the crown, were actually

independent. Hence the tendency in the 18th century to create new and

important functions under the form, not of offices, but of simple

commissions.

Fundamental laws of France.

In this period of the history of France were evolved and defined the

essential principles of the old public law. There were, in the first

place, the _fundamental laws of the realm_, which were true

constitutional principles, established for the most part not by law but

by custom, and considered as binding in respect of the king himself; so

that, although he was sovereign, he could neither abrogate, nor modify,

nor violate them. There was, however, some discussion as to what rules

actually came under this category, except in the case of two series

about which there was no doubt. These were, on the one hand, those which

dealt with the succession to the crown and forbade the king to change

its order, and those which proclaimed the inalienability of the royal

domain, against which no title by prescription was valid. This last

principle, introduced in the 14th century, had been laid down and

defined by the edict of Moulins in 1566; it admitted only two

exceptions: the formation of appanages (q.v.), and selling

(_engagement_), to meet the necessities of war, with a perpetual option

of redeeming it.

There was in the second place the theory of the rights, franchises and

liberties of the Gallican Church, formed of elements some of which were

of great antiquity, and based on the conditions which had determined the

relations of the Gallican Church with the crown and papacy during the

Great Schism and under the Pragmatic Sanction of Bourges, and defined at

the end of the 16th and the beginning of the 17th century. This body of

doctrine was defined by the writings of three men especially, Guy

Coquille, Pierre Pithou and Pierre Dupuy, and was solemnly confirmed by

the declaration of the clergy of France, or _Declaration des quatres

articles_ of 1682, and by the edict which promulgated it. Its substance

was based chiefly on three principles: firstly, that the temporal power

was absolutely independent of the spiritual power; secondly, that the

pope had authority over the clergy of France in temporal matters and

matters of discipline only by the consent of the king; thirdly, that

the king had authority over and could legislate for the Gallican Church

in temporal matters and matters of discipline. The old public law

provided a safeguard against the violation of these rules. This was the

process known as the _appel comme d'abus_, formed of various elements,

some of them very ancient, and definitely established during the 16th

century. It was heard before the parlements, but could, like every other

case, be evoked before the royal council. Its effect was to annul any

act of the ecclesiastical authority due to abuse or contrary to French

law. The clergy were, when necessary, reduced to obedience by means of

arbitrary fines and by the seizure of their temporalities. The Pragmatic

Sanction had been abrogated and replaced by the Concordat of 1515,

concluded between Francis I. and Leo X., which remained in force until

suppressed by the Constituent Assembly. The Concordat, moreover,

preserved many of the enactments of the Pragmatic Sanction, notably

those which protected the collation of the inferior benefices from the

encroachments of the papacy, and which had introduced reforms in certain

points of discipline. But in the case of the superior benefices

(bishoprics and abbeys) election by the chapters was suppressed. The

king of France nominated the candidate, to whom the pope gave canonical

institution. As a matter of fact, the pope had no choice; he had to

institute the nominee of the king, unless he could show his unworthiness

or incapacity, as the result of inquiries regularly conducted in France;

for the pope it was, as the ancient French authors used to say, a case

of compulsory collation. The annates were re-established at the time of

the Concordat, but considerably diminished in comparison with what they

had been before the Pragmatic Sanction. We must add, to complete this

account, that many of the inferior benefices, in France as in the rest

of Christendom, were conferred according to the rules of patronage, the

patron, whether lay or ecclesiastic, presenting a candidate whom the

bishop was bound to appoint, provided he was neither incapable nor

unsuitable. There was some difficulty in getting the Concordat

registered by the parlement of Paris, and the latter even announced its

intention of not taking the Concordat into account in those cases

concerning benefices which might come before it. The crown found an easy

method of making this opposition ineffectual, namely, to transfer to the

Grand Conseil the decision of cases arising out of the application of

the Concordat.

In the 16th century also, contributions to the public services drawn

from the immense possessions of the clergy were regularized. Since the

second half of the 12th century at least, the kings had in times of

urgent need asked for subsidies from the church, and ever since the

Saladin tithe (_dime saladine_) of Philip Augustus this contribution had

assumed the form of a tithe, taking a tenth part of the revenue of the

benefices for a given period. Tithes of this kind were fairly frequently

granted by the clergy of France, either with the pope's consent or

without (this being a disputed point). After the conclusion of the

Concordat, Leo X. granted the king a tithe (_decime_) under the pretext

of a projected war against the Turks; hitherto concessions of this kind

had been made by the papacy in view of the Crusades or of wars against

heretics. The concession was several times renewed, until, by force of

custom, the levying of these tithes became permanent. But in the middle

of the 16th century the system changed. The crown was heavily in debt,

and its needs had increased. The property of the clergy having been

threatened by the states general of 1560 and 1561, the king proposed to

them to remit the bulk of the tithes and other dues, in return for the

payment by them of a sum equivalent to the proceeds of the taxes which

he had mortgaged. A formal contract to this effect was concluded at

Poissy in 1561 between the king and the clergy of France, represented by

the prelates who were then gathered together for the Colloquy of Poissy

with the Protestants, and some of those who had been sitting at the

states general of Pontoise. The fulfilment of this agreement was,

however, evaded by the king, who diverted part of the funds provided by

the clergy from their proper purpose. In 1580, after a period of ten

years which had been agreed on, a new assembly of the clergy was called

together and, after protesting against this action, renewed the

agreement, which was henceforward always renewed every ten years. Such

was the definitive form of the contribution of the clergy, who also

acquired the right of themselves assessing and levying these taxes on

the holders of benefices. Thus every ten years there was a great

assembly of the clergy, the members of which were elected. There were

two stages in the election, a preliminary one in the dioceses and a

further election in the ecclesiastical provinces, each province sending

four deputies to the general assembly, two of the first rank, that is to

say, chosen from the episcopate, and two of the second rank, which

included all the other clergy. The _dons gratuits_ (benevolences) voted

by the assembly comprised a fixed sum equivalent to the old tithes and

supplementary sums paid on one occasion only, which were sometimes

considerable. The church, on her side, profited by this arrangement in

order to obtain the commutation or redemption of the taxes affecting

ecclesiastics considered as individuals. This settlement only applied to

the "clergy of France," that is to say, to the clergy of those districts

which were united to the crown before the end of the 16th century. The

provinces annexed later, called _pays etrangers_, or _pays conquis_, had

in this matter, as in many others, an arrangement of their own. At last,

under Louis XV. the edict of 1749, _concernant les etablissements et

acquisitions des gens de mainmorte_, was completely effective in

subordinating the acquisition of property by ecclesiastical

establishments to the consent and control of the crown, rendering them

incapable of acquiring real property by bequests.

At the end of the 16th century a wise law had been made which, in spite

of the traces which it bore of past struggles, had established a

reasonable balance among the Christians of France. The edict of Nantes,

in 1598, granted the Protestants full civil rights, liberty of

conscience and public worship in many places, and notably in all the

royal _bailliages_. The Catholics, whose religion was essentially a

state religion, had never accepted this arrangement as final, and at

last, in 1685, under Louis XIV., the edict of Nantes was revoked and the

Protestant pastors expelled from France. Their followers were forbidden

to leave the country, but many succeeded nevertheless in escaping

abroad. The position of those who remained behind was peculiar. Laws

passed in 1715 and 1724 established the legal theory that there were no

longer any Protestants in France, but only _vieux catholiques_ and

_nouveaux convertis_. The result was that henceforth they had no longer

any regular civil status, the registers containing the lists of

Catholics enjoying civil rights being kept by the Catholic clergy.

The form of government established under Louis XIV. was preserved

without any fundamental modification under Louis XV. After the death of

Louis XIV., however, the regent, under the inspiration of the duc de St

Simon, made trial of a system of which the latter had made a study while

in a close correspondence with the duke of Burgundy. It consisted in

substituting for the authority of the ministers, secretaries of state

and controller-general councils, or governmental bodies, mainly composed

of great lords and prelates. These only lasted for a few years, when a

return was made to the former organization. The parlements had regained

their ancient rights in consequence of the parlement of Paris having, in

1715, set aside the will of Louis XIV. as being contrary to the

fundamental laws of the kingdom, in that it laid down rules for the

composition of the council of regency, and limited the power of the

regent. This newly revived power they exercised freely, and all the more

so since they were the last surviving check on the royal authority.

During this reign there were numerous conflicts between them and the

government, the causes of this being primarily the innumerable incidents

to which the bull _Unigenitus_ gave rise, and the increase of taxation;

proceedings against Jesuits also figure conspicuously in the action of

the parlements. They became at this period the avowed representatives of

the nation; they contested the validity of the registration of laws in

the _lits de justice_, asserting that laws could only be made obligatory

when the registration had been freely endorsed by themselves. Before

the registration of edicts concerning taxation they demanded a statement

of the financial situation and the right of examining the accounts.

Finally, by the theory of the _classes_, which considered the various

parlements of France as parts of one and the same body, they established

among them a political union. These pretensions the crown refused to

recognize. Louis XV. solemnly condemned them in a _lit de justice_ of

December 1770, and in 1771 the chancellor Maupeou took drastic measures

against them. The magistrates of the parlement of Paris were removed,

and a new parlement was constituted, including the members of the _grand

conseil_, which had also been abolished. The _cour des aides_ of Paris,

which had made common cause with the parlement, was also suppressed.

Many of the provincial parlements were reorganized, and a certain number

of useful reforms were carried out in the jurisdiction of the parlement

of Paris; the object of these, however, was in most cases that of

diminishing its importance. These actions, the _coup d'etat_ of the

chancellor Maupeou, as they were called, produced an immense sensation.

The repeated conflicts of the reign of Louis XV. had already given rise

to a whole literature of books, pamphlets and tracts in which the rights

of the crown were discussed. At the same time the political philosophy

of the 18th century was disseminating new principles, and especially

those of the supremacy of the people and the differentiation of powers,

the government of England also became known among the French. Thus men's

minds were being prepared for the Revolution.

The personal government of Louis XVI. from 1774 to 1789 was chiefly

marked by two series of facts. Firstly, there was the partial

application of the principles propounded by the French economists of

this period, the Physiocrats, who had a political doctrine peculiar to

themselves. They were not in favour of political liberty, but attached

on the contrary to the absolute monarchy, of which they did not fear the

abuses because they were convinced that so soon as they should be known,

reason (_evidence_) alone would suffice to make the crown respect the

"natural and essential laws of bodies politic" (_Lois naturelles et

essentielles des societes politiques_, the title of a book by Mercier de

La Riviere). On the other hand, they favoured civil and economic

liberty. They wished, in particular, to decentralize the administration

and restore to the landed proprietors the administration and levying of

taxes, which they wished to reduce to a tax on land only. This school

came into power with Turgot, who was appointed controller-general of the

finances, and laid the foundations of many reforms. He actually

accomplished for the moment one very important reform, namely, the

suppression of the trade and craft gilds (_communautes, jurandes et

maitrises_). This organization, which was common to the whole of Europe

(see GILDS), had taken definitive shape in France in the 13th and 14th

centuries, but had subsequently been much abused. Turgot suppressed the

privileges of the _maitres_, who alone had been able to work on their

own account, or to open shops and workshops, and thus proclaimed the

freedom of labour, industry and commerce. However, the old organization,

slightly amended, was restored under his successor Necker. It was

Turgot's purpose to organize provincial and other inferior assemblies,

whose chief business was to be the assessment of taxes. Necker applied

this idea, partially and experimentally, by creating a few of these

provincial assemblies in various _generalites_ of the _pays

d'elections_. A general reform on these lines and on a very liberal

basis was proposed by Calonne to the assembly of notables in 1787, and

it was brought into force for all the _pays d'elections_, though not

under such good conditions, by an edict of the same year. Louis XVI. had

inaugurated his reign by the restoration of the parlements; all the

bodies which had been suppressed by Maupeou and all the officials whom

he had dismissed were restored, and all the bodies and officials created

by him were suppressed. But it was not long before the old struggle

between the crown and parlements again broke out. It began by the

conservative opposition offered by the parlement of Paris to Turgot's

reforms. But the real struggle broke out in 1787 over the edicts coming

from the assembly of notables, and particularly over the two new taxes,

the stamp duty and the land tax. The parlement of Paris refused to

register them, asserting that the consent of the taxpayers, as

represented by the states general, was necessary to fresh taxation. The

struggle seemed to have come to an end in September; but in the

following November it again broke out, in spite of the king's promise to

summon the states general. It reached its height in May 1788, when the

king had created a _cour pleniere_ distinct from the parlements, the

chief function of which was to register the laws in their stead. A

widespread agitation arose, amounting to actual anarchy, and was only

ended by the recall of Necker to power and the promise to convoke the

states general for 1789.

The army.

_Various Institutions._--The permanent army which, as has been stated

above, was first established under Charles VII., was developed and

organized during the _ancien regime_. The _gendarmerie_ or heavy cavalry

was continuously increased in numbers. On the other hand, the _francs

archers_ fell into disuse after Louis XI.; and, after a fruitless

attempt had been made under Francis I. to establish a national infantry,

the system was adopted for this also of recruiting permanent bodies of

mercenaries by voluntary enlistment. First there were the "old bands"

(_vieilles bandes_), chiefly those of Picardy and Piedmont, and at the

end of the 16th century appeared the first regiments, the number of

which was from time to time increased. There were also in the service

and pay of the king French and foreign regiments, the latter principally

Swiss, Germans and Scots. The system of purchase penetrated also to the

army. Each regiment was the property of a great lord; the captain was,

so to speak, owner of his company, or rather a contractor, who, in

return for the sums paid him by the king, recruited his men and gave

them their uniform, arms and equipment. In the second half of the reign

of Louis XIV. appeared the militia (_milices_). To this force each

parish had to furnish one recruit, who was at first chosen by the

assembly of the inhabitants, later by drawing lots among the bachelors

or widowers without children, who were not exempt. The militia was very

rarely raised from the towns. The purpose for which these men were

employed varied from time to time. Sometimes, as under Louis XIV., they

were formed into special active regiments. Under Louis XV. and Louis

XVI. they were formed into _regiments provinciaux_, which constituted an

organized reserve. But their chief use was during war, when they were

individually incorporated into various regiments to fill up the gaps.

Under Louis XV., with the duc de Choiseul as minister of war, great and

useful reforms were effected in the army. Choiseul suppressed what he

called the "farming of companies" (_compagnie-ferme_); recruiting became

a function of the state, and voluntary enlistment a contract between the

recruit and the state. Arms, uniform and equipment were furnished by the

king. Choiseul also equalized the numbers of the military units, and his

reforms, together with a few others effected under Louis XVI., produced

the army which fought the first campaigns of the Revolution.

System of taxation.

One of the most distinctive features of the _ancien regime_ was

excessive taxation. The taxes imposed by the king were numerous, and,

moreover, hardly any of them fell on all parts of the kingdom. To this

territorial inequality was added the inequality arising from privileges.

Ecclesiastics, nobles, and many of the crown officials were exempted

from the heaviest imposts. The chief taxes were the _taille_ (q.v.), the

_aides_ and the _gabelle_ (q.v.), or monopoly of salt, the consumption

of which was generally made compulsory up to the amount determined by

regulations. In the 17th and 18th centuries certain important new taxes

were established: from 1695 to 1698 the _capitation_, which was

re-established in 1701 with considerable modifications, and in 1710 the

tax of the _dixieme_, which became under Louis XV. the tax of the

_vingtiemes_. These two imposts had been established on the principle of

equality, being designed to affect every subject in proportion to his

income; but so strong was the system of privileges, that as a matter of

fact the chief burden fell upon the roturiers. The income of a roturier

who was not exempt was thus subject in turn to three direct imposts: the

_taille_, the _capitation_ and the _vingtiemes_, and the apportioning or

assessment of these was extremely arbitrary. In addition to indirect

taxation strictly so called, which was very extensive in the 17th and

18th centuries, France under the _ancien regime_ was subject to the

_traites_, or customs, which were not only levied at the frontiers on

foreign trade, but also included many internal custom-houses for trade

between different provinces. Their origin was generally due to

historical reasons; thus, among the _provinces reputees etrangeres_ were

those which in the 14th century had refused to pay the aids for the

ransom of King John, also certain provinces which had refused to allow

customs offices to be established on their foreign frontier. Colbert had

tried to abolish these internal duties, but had only succeeded to a

limited extent.

The indirect taxes, the _traites_ and the revenues of the royal domain

were farmed out by the crown. At first a separate contract had been made

for each impost in each _election_, but later they were combined into

larger lots, as is shown by the name of one of the customs districts,

_l'enceinte des cinq grosses fermes_. From the reign of Henry IV. on the

levying of each indirect impost was farmed _en bloc_ for the whole

kingdom, a system known as the _fermes generales_; but the real _ferme

generale_, including all the imposts and revenues which were farmed in

the whole of France, was only established under Colbert. The _ferme

generale_ was a powerful company, employing a vast number of men, most

of whom enjoyed various privileges. Besides the royal taxes, seigniorial

imposts survived under the form of tolls and market dues. The lords also

often possessed local monopolies, e.g. the right of the common bakehouse

(_four banal_), which were called the _banalites_.

Courts of law.

The organization of the royal courts of justice underwent but few

modifications during the _ancien regime_. The number of parlements, of

_cours des aides_ and of _cours des comptes_ increased; in the 17th

century the name of _conseil superieur_ was given to some new bodies

which actually discharged the functions of the parlement, this being the

period of the decline of the parlement. In the 16th century, under Henry

II., had been created _presidiaux_, or courts of final jurisdiction,

intended to avoid numerous appeals in small cases, and above all to

avoid a final appeal to the parlements. Seigniorial courts survived, but

were entirely subordinate to the royal jurisdictions and were badly

officered by ill-paid and ignorant judges, the lords having long ago

lost the right to sit in them in person. Their chief use was to deal

with cases concerning the payment of feudal dues to the lord. Both

lawyers and people would have preferred only two degrees of justice; and

an ordinance of May 1788 realized this desire in the main. It did not

suppress the seigniorial jurisdictions, but made their extinction a

certainty by allowing litigants to ignore them and go straight to the

royal judges. This was, however, reversed on the recall of Necker and

the temporary triumph of the parlements.

Ecclesiastical courts.

The ecclesiastical jurisdictions survived to the end, but with

diminished scope. Their competency had been considerably reduced by the

Ordinance of Villers Cotterets of 1539, and by an edict of 1693. But a

series of ingenious legal theories had been principally efficacious in

gradually depriving them of most of the cases which had hitherto come

under them. In the 18th century the privilege of clergy did not prevent

civil suits in which the clergy were defendants from being almost always

taken before secular tribunals, and ever since the first half of the

17th century, for all grave offences, or _cas privilegies_, the royal

judge could pronounce a sentence of corporal punishment on a guilty

cleric without this necessitating his previous degradation. The inquiry

into the case was, it is true, conducted jointly by the royal and the

ecclesiastical judge, but each of them pronounced his sentence

independently. All cases concerning benefices came before the royal

judges. Finally, the _officialites_ had no longer as a rule any

jurisdiction over laymen, even in the matter of marriage, except in

questions of betrothals, and sometimes in cases of opposition to

marriages. The parish priests, however, continued to enter declarations

of baptisms, marriages and burials in registers kept according to the

civil laws.