_Of the_ Juridical Parliaments _in_ France.
Under the _Capevingian_ Family there sprung up in _Francogallia_ a Kind
of Judicial Reign, [_Regnum Judiciale_] of which (by Reason of the
incredible Industry of the Builders up and Promoters of it, and their
unconceivable Subtilty in all subsequent Ages), we think it necessary to
say something. A Sort of Men now rule every-where in _France_, which are
called _Lawyers_ by some, and _Pleaders_ or _Pettyfoggers_ by others:
These Men, about 300 Years ago, managed their Business with so great
Craft and Diligence, that they not only subjected to their Domination
the Authority of the _General Council_, (which we spoke of before) but
also all the _Princes_ and _Nobles_, and even the _Regal Majesty_ it
self: So that in whatever Towns the Seats of this same _Judicial
Kingdom_ have been fix'd, very near the third Part of the Citizens and
Inhabitants have applied themselves to the Study and Discipline of this
wrangling Trade, induced thereunto by the vast Profits and Rewards which
attend it. Which every one may take Notice of, even in the City of
_Paris_, the Capital of the Kingdom: For who can be three Days in that
City without observing, that the third Part of the Citizens are taken up
with the Practice of that _litigious_ and _Pettyfogging_ Trade?
Insomuch, that the General Assembly of Lawyers in that City (which is
called the _Robed Parliament_) is grown to so great a Heighth of Wealth
and Dignity, that now it seems to be (what _Jugurtha_ said of old of the
_Roman Senate_) no longer an _Assembly_ of _Counsellors_, but of
_Kings_, and _Governors_ of _Provinces_. Since whoever has the Fortune
to be a Member of it, how meanly born soever, in a few Years Time
acquires immense and almost Regal Riches: For this Reason many other
Cities strove with Might and Main to have the like Privilege of
_Juridical_ Assemblies: So that now there are several of these famous
Parliaments, to wit, those of _Paris, Tholouse, Rouen, Grenoble,
Bourdeaux, Aix_, and _Dijon_: All which are _fix'd_ and _sedentary_;
besides an Eighth, which is ambulatory and moveable, and is called the
_Grand Council_.
Within the Limits of these great _Juridical Kingdoms_ there are others
lesser, which we may call _Provincial Governments_, who do all they can
to imitate the Grandeur and Magnificence of their Superiors; and these
are called _Presidial Courts_: And so strong is the Force and Contagion
of this Disease, that a very great Part of the _French_ Nation spends
its Time and Pains in Strife and Law-Suits, in promoting Contentions and
Processes; just as of old, a great Number of the _Egyptians_ were
employ'd by their Tyrants in Building _Pyramids_, and other such useless
Structures.
Now the Word _Parliament_ in the old Manner of Speech used by our
Countrymen, "signifies a Debate, or discoursing together of many
Persons, who come from several Parts, and assemble in a certain Place,
that they may communicate to one another Matters relating to the
Publick." Thus in our ancient Chronicles, whenever Princes or their
Ambassadors had a Meeting to treat of Peace or Truce, or other Warlike
Agreements; the Assembly so appointed was always called a _Parliament_;
and for the same Reason the _Publick Council_ of the _Estates_ was, in
our old Language, called a _Parliament_. Which Assembly, being of great
Authority, the Kings of the _Capevingian_ Race having a Mind to diminish
that Authority by little and little, substituted in its Place a certain
Number of _Senators_, and transferred the August Title of a _Parliament_
to those _Senators:_ And gave them these Privileges: First, That none of
the King's Edicts shou'd be of Force, and ratified, unless those
Counsellors had been the _Advisors_ and _Approvers_ of them. Next, That
no Magistracy or Employment in all _France_, whether Civil or Military,
shou'd be conferr'd on any Person, without his being _inaugurated_, and
taking the _Oaths_ in that _Assembly_. Then that there should be _no
Liberty of Appeal_ from their judgment, but that all their Decrees
should stand firm, and inviolable. In fine, whatever Power and Authority
had anciently been lodged in the _General Council_ of the Nation, during
so many Years together, was at Length usurped by that _Counterfeit
Council_, which the Kings took care to fill with such Persons as would
be most subservient to their Ends.
Wherefore it will be worth our while, to enquire from what Beginnings it
grew up to so great a Heighth and Power; First, a very magnificent
Palace was built at _Paris_, by Order (as some say) of King _Lewis
Hutin_, which in our Ancient Language signifies _mutinous_ or
_turbulent_. Others say, by _Philip the fair_, about the Year 1314.
thro' the Industry and Care of _Enguerrant de Marigny_ Count of
_Longueville_, who was hanged some Years after on a Gallows at _Paris_,
for embezzling the Publick Money, Whoever 'twas that built it, we may
affirm, that our _Francogallican_ Kings took the same Pains in building
up this _litigious Trade_, that the _Egyptian_ Monarchs are said to have
done in employing their Subjects to build the _Pyramids_; among whom
_Chemnis_ is recorded to have gathered together 360000 Men to raise one
Pyramid. _Gaguinus_, in his History of King _Hutin's_ Life, has this
Passage,--"_This_ Lewis _ordained, That the Court of Parliament should
remain fixed and immoveable in the City of_ Paris, that Suitors and
Clients might not be put to the Trouble of frequent Removals." Now what
some affirm, that _Pipin_ or _Charlemagn_ were the Authors of this
Institution, is very absurd, as we shall plainly make appear. For most
of the Laws and Constitutions of _Charlemagn_ are extant; in all which
there is not the least Mention made of the Word _Parliament_, nor of
that great _fixed Senate_; he only ordains, That in certain known Places
his Judges should keep a _Court_, and assemble the People; which
according to his usual Custom he calls a _Placitum_, or a _Mallum_, as
[_lib. 4. cap. 35._ Legis _Franciæ_] 'tis written, "_He shall cause no
more than three general_ Placita _to be kept in one Year, unless by
chance some Person is either accused, or seizes another Man's Property,
or is summoned to be a Witness--._" There are many other Laws extant of
that King's of the like Nature, by which we may observe the Paucity of
Law-suits in his Days: And I am clearly of Opinion, that what I find
several of our modern Authors have affirm'd is most true, _viz._ that
the first Rise and Seeds of so many Law-suits, Calumnies and Contentions
in this Kingdom, proceeded from Pope _Clement_ the Fifth, who during the
Reign of _Philip the Fair_, transferred the Seat of his Papacy to
_Avignon_, at which Time his Courtiers and Petty-Foggers, engaging into
Acquaintance with our Countrymen, Introduced the _Roman_ Arts of
Wrangling into our Manners and Practice. But not to speak of such remote
Times. About the Year of our Lord 1230. reigned St. _Lewis_, as he is
plainly called, whose Life _Johannes Joinvillæus_ (whom we have often
mentioned) has written at large. Out of his Commentary we may easily
learn, how few Contentions and Law-Suits were in those Days, since King
_Lewis_ either determined the Controversies himself in Person, or
referred them to be determined by some of his Followers and Companions:
And therefore [_cap._ 94.] he thus writes,--"_He was wont_ (says he) _to
command Lord_ Nellius, _Lord_ Soissons, _or my self, to inspect and
manage the Appeals which were made to him. Afterwards he sent for us,
and enquired into the State of the Case; and whether it were of such a
Nature as could not be ended without his own Intervention. Oftentimes it
hapned, that after we had made our Report, he sent for the contending
Parties, and heard the Cause impartially argued over again. Sometimes
for his Diversion he would go to the Park of_ Bois de Vincennes, _and
sitting down upon a green Sodd at the Foot of an Oak Tree, would command
us to sit by him; and there if any one had Business, he wou'd cause him
to be called, and bear him patiently. He wou'd often himself proclaim
aloud, That if any one had Business, or a Controversy with an Adversary,
he might come near and set forth the Merits of his Cause; then if any
Petitioner came, he wou'd hear him attentively; and having throughly
considered the Case, wou'd pass judgment according to Right and Justice.
At other Times he appointed_ Peter Fountain _and_ Godfrey Villet _to
plead the Causes of the contending Parties. I have often_ (says he)
_seen that good King go out of Paris into one of his Gardens or Villa's
without the Walls, dressed very plainly, and there order a Carpet to be
spread before him on a Table; and having caused Silence to be
proclaimed, those which were at Variance with each other, were
introduced to plead their Causes; and then he presently did Justice
without Delay._" Thus far _Joinvillæus_--By which we may guess at the
small Number of Law Suits and Complainants in those Days, and how
careful our Kings were of preventing the Mischiefs that might arise from
such as fomented Controversies. In the _Capitular_ of _Charles the
Great_ this Law is extant.--"_Be it known unto all Persons both Nobility
and People, by these our Patents, That we will sit one Day in every Week
to hear Causes in Person._"
We have the like Testimony in _William Budæus_, a very famous Man, and a
Principal Ornament of our Kingdom of _France_. For in his Annotations on
the _Pandects_ (where he treats of this very Argument, and inveighs
against this _Kingdom of Brawlers and Petty-Foggers_) he tells us, that
he finds in the Regal Commentaries of Venerable Antiquity, (the free
Perusal of which his Quality did intitle him to) "_That in the Reign of
the same King_ Lewis, [Anno 1230.] _several Controversies arose between
the King and the Earl of_ Britany; _And that by Consent (as 'tis
probable) of both Parties, a Camp-Court of Judicature was summoned to
meet at_ Erceniacum, _wherein sate as Judges, not Lawyers, Civilians and
Doctors, but Bishops, Earls, and Barons. And there the Earl of_ Britany
_was cast, and it was order'd that the Inhabitants of his County should
be absolved and freed from the Oath of Allegiance and fidelity, which
they had taken to him_. Again, in the same King's Reign, [Anno 1259.] _a
Dispute having arisen about the County of_ Clairmont _between the King
and the Earls of_ Poitou _and_ Anjou, _a Court of Judicature, composed
of the like Persons was appointed, wherein sat the Bishops and Abbots,
the General of the_ Dominicans, _the Constable, the Barons, and several_
Laicks. To this he subjoyns: _Yet there were two Parliaments called each
Year, at_ Christmas _and at_ Candlemas, _like as there are two_ Scacaria
_summoned in_ Normandy _at_ Easter _and at_ Michaelmas." Thus far
_Budæus_; to whom agrees what we find in an ancient Book concerning the
_Institution of Parliaments_, wherein this Article is quoted out of the
_Constitution of Philip_ the 4th, Sirnamed the _Fair_ [ex Anno
1302.]--"_Moreover, for the Conveniency of our Subjects, and the
expeditious determining of Causes, we propose to have it enacted, that
two Parliaments shall be held every Year at_ Paris, _and two_ Scacaria
_at_ Rouen: _That the_ Dies Trecenses _shall be held twice a Year: and
that a Parliament shall be held at_ Tholouse, _as it used to be held in
past Times, if the People of the Land consent to it: Also, because many
Causes of great Importance are debated in our Parliament, between great
and notable Personages; We ordain and appoint, that two Prelates, and
two other sufficient Persons, being Laymen of our Council; or at least
one Prelate and one Laick, shall be continually present in our
Parliaments, to hear and deliberate concerning the above-mentioned
Causes."_--From which Words we may learn, First, how _seldom_ the Courts
of Judicature heard Causes in those Days. Next, how few judges sat in
those _Parliaments_. For as to the other Provinces and Governments of
the Kingdom, we have (in the same Book) the _Constitution of Philip the
Fair_, in these Words, [Anno 1302.]--"_Moreover, We ordain that our
Seneschals and Bayliffs shall hold their Assizes in Circuit throughout
their Counties and Bayliwicks once every two Months at least."_
Furthermore, _Budæus_ in the same Place, [Anno 1293.] writes, that
_Philip_ the _Fair_ appointed, that three Sorts of People shou'd sit in
Parliament, viz. _Prelates, Barons_, and _Clerks mixed with Laymen:_
"Since the Laicks (says he) are chosen promiscuously out of the Knights,
and out of other Sorts of People. Also, that the Prelates and Barons
shou'd select fit Persons out of that third Estate, to exercise every
Sort of Judicature; and at the same Time shou'd chuse three Judges, who
shou'd be sent abroad into those Countries where the written Laws of the
Land had their Course, that they might there judge and determine
according to Law. And if any Question of great Importance were to be
argued, they should take to their Assistance the most Learned Men they
could get.--" In which Place, _Budæus_ lamenting the Evil Customs of our
Times; that is, this _Kingdom of Lawyers_ now in Vogue, breaks out with
_Juvenal_ into this Exclamation: "_Quondam hoc indigenæ vivebant more!
So_ (says he) _may I exclaim, that in Old Times, when this Kingdom
flourished, (as many appear by our Money coined of pure fine Gold) there
was a plain and easy Way of doing Justice; there were few Law-suits, and
those not of long Continuance, or indeed Eternal, as now they are; for
then this Rabble-Rout of pretended Interpreters of the Law had not
invaded the Publick: neither was the Science of the Law stretched out to
such an unlimited Extent; but Truth and Equity, and a prudent Judge,
endued with Integrity and Innocence, was of more worth than Six hundred
Volumes of Law-Books. But now to what a sad Condition Things are
brought, every one sees, but no Body dares speak out. [Sed omnes dicere
mussant.]"_ Thus far honest _Budæus_; a most inveterate Adversary of
this Art of Chicanery, upon all Occasions.
To return to our Purpose, of giving an Account upon what Foundations and
Beginnings this _Reign of Litigiousness_ was first raised. As _Cicero_
writes, that the Old High-Priests (by Reason of the Multitude of
Sacrifices) instituted three Assistants called _Viri Epulones_, altho'
they themselves were appointed by _Numa_ to offer Sacrifice at the _Ludi
Epulares_: In like Manner, out of a very _Small Number_ of Parliamentary
Judges, (when Law-Suits and Litigiousness increased) swarm'd this
incredible Multitude of _Judges_, and _Spawn_ of _Counsellors_. And, in
the first Place, a great, sumptuous and magnificent Palace was built (as
we told you before) either by the Command of _Lewis Hutin_, or of
_Philip the Fair:_ then (from a moderate Number of judges) three Courts
of Ten each, were elected a [_tres decurie_] _viz._ Of the _great
Chamber_ of _Accounts_, of _Inquests_, and of _Requests_. Which
Partition _Budæus_ speaks of in the above quoted Place, but more at
large _Gaguinus_ in his Life of King _Lewis Hutin_.
I must not omit one remarkable Thing that ought for ever to be
remembred, which both these Authors have transmitted to Posterity:
_viz._ That this Meeting of the Court of Judicature was not _perpetual_
and _fixed_, as 'tis now, but _summonable_ by the _King's Writs_, which
every Year were renewed by Proclamation about the Beginning of
_November:_ "_And that we may be certain_ (says _Gaguinus) that the King
was the Original and Author of this solemn Convention; the Royal Writs
are issued every Year, whereby the Parliament is authorized to meet on
the Feast-day of_ St. Martin, _that is, on the 10th of_ November."
Now of the wonderful and speedy Increase of this _Judicial Kingdom_, we
have this Instance; That about a hundred Years after its Beginning, that
is, in the Year 1455, in the Reign of _Charles_ the 7th, we find this
Order made by him--_From the Feast of_ Easter, _till the End of the
Parliament, the Presidents and Counsellors ought to meet in their
respective Chambers at Six a Clock every Morning: from the Feast of St._
Martin _forwards, they may meet later.--_And a little after it says, _We
judge it very necessary, that the Presidents and Counsellors of the
Court shou'd come to Parliament after Dinner, for the Dispatch of
Causes, and of Judgments._ This was _Charles_ the 7th's Order: But in
_Charles_ the Great's Reign, who ruled a Kingdom three Times as big, we
find a very different Manner of rendring Justice; as we may easily
understand by that Law of his, mention'd lib. 4. cap. 74. _Legis
Franciæ_; "_Let a_ Comes, _a Judge_ (says he) _not hold a_ Placitum,
_(that is, not pass a Decree) but before Dinner, or Fasting._"
Concerning the Word _Parliament_, and the Authority of that Name, we
have this Argument; That when of old a Senate was instituted in
_Dauphine_ with supreme Authority, which was commonly called the
_Council of Dauphine_; _Lewis_ the 11th endeavouring to oblige the
_Dauphinois_, who had well deserved from him, changed the Name of this
_Council_ into that of a _Parliament_, without adding any Thing to the
Privileges or Authority of it. Of which _Guidopappius_ is our Witness.
[Quest. 43. and again quest. 554.]