The general customs of the _pays coutumiers_ were almost all officially
recorded in the 16th century, definite procedure for this purpose having
been adopted at the end of the 15th century. Drafts were prepared by the
officials of the royal courts in the chief town of the district in which
the particular customs were valid, and were then submitted to the
government. The king then appointed commissioners to visit the district
and promulgate the customs on the spot. For the purpose of this
_publication_ the lords, lay and ecclesiastical, of the district, with
representatives of the towns and of various bodies of the inhabitants,
were summoned for a given day to the chief town. In this assembly each
article was read, discussed and put to the vote. Those which were
approved by the majority were thereupon decreed (_decretes_) by the
commissioners in the king's name; those which gave rise to difficulties
were put aside for the parlement to settle when it registered the
_coutume_. The _coutumes_ in this form became practically written law;
henceforward their text could only be modified by a formal revision
carried out according to the same procedure as the first version.
Throughout the 16th century a fair number of _coutumes_ were thus
revised (_reformees_), with the express object of profiting by the
observations and criticisms on the first text which had appeared in
published commentaries and notes, the most important of which were those
of Charles Dumoulin. In the 16th century there had been a revival of the
study of Roman law, thanks to the historical school, among the most
illustrious representatives of which were Jacques Cujas, Hugues Doneau
and Jacques Godefroy; but this study had only slight influence on
practical jurisprudence. Certain institutions, however, such as
contracts and obligations, were regulated throughout the whole of France
by the principles of Roman law.
Legislation by _ordonnances, edits, declarations_ or _lettres patentes_,
emanating from the king, became more and more frequent; but the
character of the _grandes ordonnances_, which were of a far-reaching and
comprehensive nature, underwent a change during this period. In the
14th, 15th and 16th centuries they had been mainly _ordonnances de
reformation_ (i.e. revising previous laws), which were most frequently
drawn up after a sitting of the states general, in accordance with the
suggestions submitted by the deputies. The last of this type was the
ordinance of 1629, promulgated after the states general of 1614 and the
assemblies of notables which had followed it. In the 17th and 18th
centuries they became essentially _codifications_, comprising a
systematic and detailed statement of the whole branch of law. There are
two of these series of codifying ordinances: the first under Louis XIV.,
inspired by Colbert and carried out under his direction. The chief
ordinances of this group are that of 1667 on civil procedure (code of
civil procedure); that of 1670 on the examination of criminal cases
(code of penal procedure); that of 1673 on the commerce of merchants,
and that of 1681 on the regulation of shipping, which form between them
a complete code of commerce by land and sea. The ordinance of 1670
determined the formalities of that secret and written criminal
procedure, as opposed to the hearing of both parties in a suit, which
formerly obtained in France; it even increased its severity, continuing
the employment of torture, binding the accused by oath to speak the
truth, and refusing them counsel save in exceptional cases. The second
series of codifications was made under Louis XV., through the action of
the chancellor d'Aguesseau. Its chief result was the regulation, by the
ordinances of 1731, 1735 and 1747, of deeds of gift between living
persons, wills, and property left in trust. Under Louis XVI. some
mitigation was made of the criminal law, notably the abolition of
torture.
Land tenure.
The feudal regime, in spite of the survival of seigniorial courts and
tolls, was no longer of any political importance; but it still furnished
the common form of real property. The fief, although it still implied
homage from the vassal, no longer involved any service on his part
(excepting that of the _arriere-ban_ due to the king); but when a fief
changed hands the lord still exacted his _profits_. Tenures held by
_roturiers_, in addition to some similar rights of transfer, were
generally subject to periodical and fixed contributions for the profit
of the lord. This system was still further complicated by tenures which
were simply real and not feudal, e.g. that by payment of ground rent,
which were superadded to the others, and had become all the heavier
since, in the 18th century, royal rights of transfer had been added to
the feudal rights. The inhabitants of the country districts were longing
for the liberation of real property.
Serfdom.
The three estates.
Serfdom had disappeared from most of the provinces of the kingdom; among
all the _coutumes_ which were officially codified, not more than ten or
so still recognized this institution. This had been brought about
especially by the agency of the custom by which serfs had been
transformed into _roturiers_. An edict of Louis XVI. of 1779 abolished
serfdom on crown lands, and mitigated the condition of the serfs who
still existed on the domains of individual lords. The nobility still
remained a privileged class, exempt from certain taxes. Certain offices
were restricted to the nobility; according to an edict of Louis XVI.
(1781) it was even necessary to be a noble in order to become an officer
in the army. In fact, the royal favours were reserved for the nobility.
Certain rules of civil and criminal procedure also distinguished nobles
from _roturiers_. The acquisition of fiefs had ceased to bring nobility
with it, but the latter was derived from three sources: birth, _lettres
d'anoblissement_ granted by the king and appointment to certain offices.
In the 17th and 18th centuries the peers of France can be reckoned among
the nobility, forming indeed its highest grade, though the rank of peer
was still attached to a fief, which was handed down with it; on the eve
of the Revolution there were thirty-eight lay peers. The rest of the
nation, apart from the ecclesiastics, consisted of the _roturiers_, who
were not subject to the disabilities of the serfs, but had not the
privileges of the nobility. Hence the three orders (estates) of the
kingdom: the clergy, the nobility and the _tiers etat_ (third estate).
An edict of Louis XVI. had made a regular civil status possible to the
Protestants, and had thrown open offices and professions to them, though
not entirely; but the exercise of their religion was still forbidden.
_The Revolution._--With the Revolution France entered the ranks of
constitutional countries, in which the liberty of men is guaranteed by
fixed and definite laws; from this time on, she has had always (except
in the interval between two revolutions) a written constitution, which
could not be touched by the ordinary legislative power. The first
constitution was that of 1791; the states general of 1789, transformed
by their own will, backed by public opinion, into the Constituent
Assembly, drew it up on their own authority. But their work did not stop
there. They abolished the whole of the old public law of France and part
of the criminal law, or rather, transformed it in accordance with the
principles laid down by the political philosophy of the 18th century.
The principles which were then proclaimed are still, on most points, the
foundation of modern French law. The development resulting from this
extraordinary impetus can be divided into two quite distinct phases: the
first, from 1789 to the _coup d'etat_ of the 18th Brumaire in the year
VIII., was the continuation of the impulse of the Revolution; the second
includes the Consulate and the first Empire, and was, as it were, the
marriage or fusion of the institutions arising from the Revolution with
those of the _ancien regime_.
The Constitutions of the Revolution.
On the whole, the constitutional law of the Revolution is a remarkably
united whole, if we consider only the two constitutions which were
effectively applied during this first phase, that of the 3rd of
September 1791, and that of the 5th Fructidor in the year III. It is
true that between them occurred the ultra-democratic constitution of the
24th of June 1793, the first voted by the Convention; but although this
was ratified by the popular vote, to which it had been directly
submitted, in accordance with a principle proclaimed by the Convention
and kept in force under the Consulate and the Empire, it was never
carried into effect. It was first suspended by the establishment of the
revolutionary government strictly so called, and after Thermidor, under
the pretext of completing it, the Convention put it aside and made a new
one, being taught by experience. As long as it existed it was the
sovereign assembly of the Convention itself which really exercised the
executive power, governing chiefly by means of its great committees.
The constitution of 1791 was without doubt monarchical, in so far as it
preserved royalty. The constitution of the year III. was, on the
contrary, republican. The horror of monarchy was still so strong at that
time that an executive college was created, a Directory of five members,
one of whom retired every year; they were elected by a complicated and
curious procedure, in which each of the two legislative councils played
a distinct part. But this difference, though apparently essential, was
not in reality very profound; this is proved, for example, by the fact
that the Directory had distinctly more extensive powers than those
conferred on Louis XVI. by the Constituent Assembly. On almost all
points of importance the two constitutions were similar. They were both
preceded by a statement of principles, a "Declaration of the Rights of
Man and of the Citizen." They were both based on two principles which
they construed alike: the sovereignty of the people and the separation
of powers. Both of them (with the exception of what has been said with
regard to the ratification of constitutions after 1793) recognized only
representative government. From the principle of the sovereignty of the
people they had not deduced universal suffrage; though, short of this,
they had extended the suffrage as far as possible. According to the
constitution of 1791, in addition to the conditions of age and
residence, an elector was bound to pay a direct contribution equivalent
to three days' work; the constitution of the year III. recognized the
payment of any direct contribution as sufficient; it even conferred on
every citizen the right of having himself enrolled, without any other
qualification than a payment equivalent to three days' work, and thus to
become an elector. Further, neither of the two constitutions admitted of
a direct suffrage; the elections were carried out in two stages, and
only those who paid at a higher rating could be chosen as electors for
the second stage. The executive power, which was in the case of both
constitutions clearly separated from the legislative, could not initiate
legislation. The Directory had no veto; Louis XVI. had with difficulty
obtained a merely suspensive veto, which was overridden in the event of
three legislatures successively voting against it. The right of
dissolution was possessed by neither the king nor the Directory. Neither
the king's ministers nor those of the Directory could be members of the
legislative body, nor could they even be chosen from among its ranks.
The ministers of Louis XVI. had, however, thanks to an unfortunate
inspiration of the Constituent Assembly of 1791, the right of entry to,
and, to a certain extent, of speaking in the Legislative Assembly; the
constitution of the year III. showed greater wisdom in not bringing them
in any way into contact with the legislative power. The greatest and
most notable difference between the two constitutions was that that of
1791 established a single chamber which was entirely renewed every two
years; that of the year III., on the contrary, profiting by the lessons
of the past, established two chambers, one-third of the members of which
were renewed every year. Moreover, the two chambers, the Council of Five
Hundred and the Council of Ancients, were appointed by the same
electors, and almost the only difference between their members was that
of age.