The "customs."

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.

Encyclopaedia Britannica, 11th Edition, "France" to "Francis Joseph I." Volume 10, Slice 8 · 第 7 / 12 题